[2023] KEHC 26068 (KLR)

Dindi v Republic (Criminal Appeal E178 of 2023) [2023] KEHC 26068 (KLR) (1 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26068 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal E178 of 2023

DR Kavedza, J

December 1, 2023

Between

Chelsea Ayako Dindi

Appellant

and

Republic

Respondent

(Being an application for bail pending appeal)

Ruling

1. The Appellant/Applicant herein was charged with the offence of Sexual Assault contrary to section 5(1) (b) of the Sexual Offences Act No 3 of 2006 hereinafter, "the Act." She also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Act. In addition, she faced a second count of Child Pornography contrary to section 24(1) (c) of the Computer Misuse and Cybercrime Act. She was found guilty on the alternative count and was sentenced to 3 years' Imprisonment

2. Being dissatisfied with the decision, she filed a petition of appeal dated 8th June 2023. Simultaneously, she filed an application seeking her release on reasonable bail and/or bond terms pending the hearing and determination of her appeal.

3. The application for bail/bond is premised on the grounds that the appeal has overwhelming probability of success, the applicant is a student still in university who risks not completing her studies, the appellant will always attend court when required as she has always complied with bail terms set by the trial court, and she risks serving a substantial part of the sentence by the time the appeal is heard and determined. The application is also supported by an affidavit dated 9th June 2023, where the grounds adduced in the application have been reiterated.

4. Learned counsel for the appellant submitted that the appeal has a high probability of success and it is therefore in the interest of justice she should not continue to be kept in custody. He argued that the appeal is on a point of law being that the conviction was purely anchored on suspicion and circumstantial evidence. He argued that in this case, the trial court neither expressed itself whether it believed the complainant to be speaking the truth nor did not record whether it found her to be credible and the reason for such belief.

5. Learned counsel further submitted that the conviction was based on the complainant’s evidence whose character and credibility was found to be questionable, as can be deduced by the judgement of the trial court. Relying on the case of Nairobi High Court Criminal Appeal No 405 & 406 of 2009 Jon Caedon Wagner v Republic & 2 others [2011] eKLR, counsel submitted that the omission by the trail court to record why it found the victim’s evidence credible enough so as to convict, despite having made the aforementioned pronouncements, returns a conclusion that the conviction cannot stand.

6. Elsewhere, learned counsel for the applicant submitted that the trial court failed to take into account that the complainant and the applicant were both teenagers at the time of the alleged offence in December 2017, aged 17 and 19 years respectively. It was submitted that the applicant carried herself in a manner that gave the applicant the impression that she was an adult. He relied on the case of Eliud Waweru Wambui v Republic [2019]eKLR.

7. Ms. Akunja learned prosecution counsel submitted that the first issue for consideration is whether there exist exceptional or overwhelming circumstances to warrant the release on bail pending appeal. It was submitted that the applicant has not demonstrated any unusual or exceptional circumstances to warrant her to be granted bail/bond and that the intended appeal has no overwhelming chance of success; that the applicant will not suffer any prejudice if she is denied bail.

8. On whether the appeal would be rendered nugatory, learned prosecution counsel submitted that the court is currently handling 2022 matters and there will not be any inordinate delay in hearing the appeal. She argued that the hearing can proceed on a priority basis subject to the court's diary for the appeal to be heard and determined within a reasonable time.

9. I have considered the application, the submissions of the parties, and a petition of appeal. The issue that arises for determination is whether the applicant has met the threshold for the grant of bail for pending appeal.

Analysis and determination 10. The provision of law that applies to bond/bail pending appeal is section 357 of the Criminal Procedure Code (Cap 75) Laws of Kenya which provides as follows:(1)After the entering of an appeal by a person entitled to appeal, the High Court, or the subordinate court which convicted or sentenced that person, may order that he be released on bail with or without sureties, or, if that person is not released on bail, shall at his request order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal:The principles for granting bond pending an appeal were reiterated in the case of Jivraj Shah v Republic [1986] KLR 605 which laid down the principles as follows:“(1)The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.(2)If it appears prima face from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be argued and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists.(3)The main criteria are that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued."

11. In the case of Chimambhai v Republic 1971 EA 343 J. Harris made another observation in such an application when he said;“The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”

12. Under Article 49 of the Constitution of Kenya an accused person who is facing a criminal charge has a right to bond because he is presumed to be innocent till proven guilty, unlike a case where one is already convicted. I have carefully examined the grounds of appeal raised by the applicant. On the aspect of demonstration of exceptional or unusual circumstances, the court observes that the applicant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. The appellant also claimed to be a student in college who risks not completing school should the application be disallowed. However, education or schooling does not constitute an exceptional circumstance to warrant the grant of bail pending appeal.

13. It was also argued that the appellant's appeal is likely to be determined after the sentence is served. The appellant was sentenced to three years imprisonment. The applicant's apprehension, as I understood it is that the appeal will take a long to be heard. However, it is my view that it is possible to have this appeal heard and determined expeditiously and without delay.

14. The applicant states that the appeal herein has a high chance of success and one need only look at the judgment and petition of appeal to see this. The rationale for considering the chances of success of the appeal was given in Somo v R [1972] EA 472 on page 480 as follows:“There is little if any point in granting the application if the appeal is not thought to have an overwhelming chance of being successful, at least to the extent that the sentence will be interfered with so that the applicant will be granted his liberty by the appeal court. I have used the word "overwhelming" deliberately for what I believe to be good reason. It seems to me that when these applications are considered it must never be forgotten that the presumption is that when the applicant was convicted, he was properly convicted. That is why, where he is undergoing a custodial sentence, he must demonstrate, if he wishes to anticipate the result of his appeal and secure his liberty forthwith, that there are exceptional or unusual circumstances in the case. That is why, when he relies on the ground that his appeal will prove successful, he must show that there is an overwhelming probability that it will succeed."

15. In this case, I have considered the ten grounds of appeal raised in the petition of appeal. The court has reviewed the grounds of appeal as well as the evidence as analysed and the findings of the trial Magistrate and is of the opinion that the appeal has some reasonable prospects of success and coupled with the fact that the offence for which the applicant was convicted did not involve any personal violence, admitting her to bail under the circumstances does not pose any risk to society or to himself.

16. The applicant at the trial stage was admitted to bail in the sum of Kshs 100,000. As stated earlier in this ruling the applicant is no longer a free person but a convict. Her conviction is prima facie valid until set aside. The bail terms therefore ought to be more stringent than at the trial stage to ensure her presence during the pendency and disposal of her appeal.

17. The court, in the circumstances, admits the applicant to a bond of Kshs 200,000 with surety of a similar amount and orders the appeal to be prosecuted expeditiously.It is so ordered.

RULING DATED DELIVERED VIRTUALLY THIS 1ST DAY OF DECEMBER 2023________________D. KAVEDZAJUDGEIn the presence of:Mr. Kiragu h/b for Mr. Mutuma for the Respondent.Ms. Umazi h/b for Mr. Waluke for the Appellant.Appellant present on the platform.Joy/ Naomi Court Assistants.