[2022] KEHC 13619 (KLR)

Director of Public Prosecutions v Koech (Anti-Corruption and Economic Crimes Appeal E015 of 2021) [2022] KEHC 13619 (KLR) (Anti-Corruption and Economic Crimes) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13619 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Anti-Corruption and Economic Crimes

Anti-Corruption and Economic Crimes Appeal E015 of 2021

EN Maina, J

October 6, 2022

Between

Director of Public Prosecutions

Appellant

and

Davy Kiprotich Koech

Respondent

Ruling

Introduction 1. The Respondent in this appeal has moved this Court vide the Chamber Summons dated April 4, 2022 seeking the following reliefs:'i.Spentii.Pending the hearing and determination of this application and appeal, the Honourable Court be pleased to issue an order releasing the Applicant from prisoniii.The Honourable Court be pleased to issue an order to the Officer-in-Charge, Nairobi Remand and Allocation Prison (Industrial Area), Nairobi to produce Dr Davy Kiprotich Koech (the Applicant herein) before the court on a day to be indicated to enable the Honourable court examine the Applicant towards reaching a just and fair determination of this Application.iv.The Honourable court be pleased to issue an order discharging the Applicant forthwithv.Any further order or other orders permissible in the interests of justice in the circumstances as the Honourable court may deem fair, reasonable and justvi.Costs of this application be provided for.'

2. The application is supported by the grounds on the face of it and the supporting affidavit of counsel on record for the applicant, Charles Midenga. He deposes that he has visited the applicant on numerous occasions and observed that the applicant is manifestly old, aged about 70, frail and his health has deteriorated greatly while in custody. He has also undergone a series of medical assessments while in custody with the latest finding being that 'He is not fit to stand trial at the moment.'

3. The deponent states further that whereas the applicant was charged in Milimani Anti-Corruption Criminal Case No 22 of 2009 for unlawfully transferring Kshs 18,500,000 from Kenya Medical Research Institute (KEMRI) into his account, the applicant fully paid the principal amount with interest of Kshs 3,000,000 amounting to Kshs 21,216,136. That the applicant did so on the common understanding that the prosecution would withdraw the case.

4. It is asserted on behalf of the applicant that the orders sought are in the best interests of the accused, not contrary to public interest and that the applicant’s continued stay in custody is tantamount to condemning the applicant to a slow death. That the applicant’s health will continue to deteriorate unless the court intervenes. Counsel assured the court that the applicant being manifestly old and frail is not a threat to the safety of the public hence the orders sought ought to be granted in the interests of justice.

Respondent’s Case 5. The application is vehemently opposed vide the Respondent’s Grounds of Opposition dated and filed on May 6, 2022 citing the following grounds:a.That the orders sought by the Applicant cannot issue because the Applicant was 'Mentally fit to stand trial' throughout his trial and thus the order of discharge sought are not based on any legal foundation.b.That the conviction and sentence meted out is lawful and his presumption of innocence was lost upon conviction and thus the orders sought are baseless.c.That this being a court of record, the appeal against the appellant can proceed to logical conclusion on the basis of the proceedings on record since the Applicant shall not be required to adduce any evidence.d.That the reprieve available to the Applicant is committal to a mental facility upto the time that he is mentally fit to prosecute his appeal.

Submissions 6. The application was canvassed by way of written submissions. It is submitted that his application is merited having demonstrated the principles set by the Court of Appeal in the case ofJivraj Shah vs Republic (1986) eKLR, in which the court underscored that such an application can be granted if there exist exceptional or unusual circumstances upon which the court can conclude that it is in the interests of justice to grant bail.

7. Counsel for the applicant submits further that the various medical reports annexed to the affidavit demonstrating the applicant’s deteriorating condition have not been challenged or disputed by the State hence the same coupled with his advanced age constitute exceptional circumstances. In support of the prayer for bail and discharge Counsel for the Applicant cited the decision in Kigoro Machoro vs Republic (2019) eKLR and Wilson Kipchirchir Koskei vs Republic (2019) eKLR respectively in which the courts considered the respective applicants ages of 80 as exceptional circumstances warranting issuance of bail pending appeal. In the latter case, the court opined that the applicant being an octogenarian could not be said to be a significant threat to the public.

8. Moreover, Counsel submits that the applicant is likely to be successful in his Notice of Cross-Appeal dated April 4, 2022 in line with the Court’s holding inMotichand vs Republic (1972)1EA 399 (HCK). Counsel enumerated the issues presented in the said Notice of Cross-Appeal, especially on the aforesaid matter of restitution; that the trial court erred in failing to appreciate that the Centre for Disease Control is the proper complainant and he should not have been convicted without their testimony and that the trial court relied on a non-existent legal provision, Section 459(3) of the Anti-Corruption and Economic Crimes Act and retroactively applied the Public Finance Management Act No 18 of 2012.

9. The Respondent on the other hand submitted that bail pending appeal is not an automatic right. Counsel for the State cited the case of Michael Kipkemboi Tarus vs Republic High Court Criminal Appeal No 66 of 2015 in which the court stated that in order for the appellant to be entitled to bond pending appeal, he must demonstrate that his appeal has overwhelming chances of success and that there exists exceptional and unusual circumstances. Counsel also placed reliance on the cases ofSomo vs Republic (1972) EA 476, Mutua vs Republic (1988) KLR 497, Juvraj Shah vs Republic (supra) and Dominic Karanja vs Republic (1986) KLR 612.

10. Counsel asserted that the Respondent’s cross-appeal does not have overwhelming chances of success because his conviction by the trial court was safe. That the submission that he had restituted monies lost is unfounded because there is no bar to criminal prosecution where an offence has been disclosed; nor is the existence of a civil case on the same subject matter a bar to institution or continuation of criminal proceedings as per the provisions of Section 193A of the Criminal Procedure Code. Counsel submitted further that the State in this case is the rightful complainant in accordance with the decision in Director of Public Prosecutions (DPP) VS Nairobi Chief Magistrate’s Court & Another (2016) eKLR.

11. Counsel concluded that not only has the applicant failed to establish special circumstances and overwhelming chances of success in his cross-appeal; he has also failed to pay fines imposed upon him by the trial court which fines he was allowed to pay in instalments necessitating the application of the custodial sentence. Counsel contended that the trial court’s sentences were very lenient with the applicant’s ill health taken into account in mitigation. However, he is not entitled to orders sought.

Analysis and Determination 12. The State instituted this appeal seeking enhancement of the punishment meted by the trial Court upon conviction of the Applicant for various corruption related offences.

13. The application invokes the jurisdiction of this court under Articles 2(5) and (6), 19, 20, 21, 24, 50, 51(2) 159, 165(b) and 7 of theConstitution and Sections 362 and 364 of the Criminal Procedure Code. However the applicant specifically makes an application for bail pending under Section 357(1) of the Criminal Procedure Code which states:-'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.'

14. The grant of bail pending appeal is purely discretionary issued only in exceptional circumstances as there is a conviction in place, hence the applicant has lost the constitutional right to presumption of innocence. In Chimambhai v Republic 1971 EA 343, the court held as follows:'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.'

15. This position was reiterated in the case of Joshua Kiarie Njuguna v Republic [2021] eKLR, whereby the court quoted the case of Masrani vs. R [1060] EA 321 in which it was held thus:'Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction.'

16. Further, the Court of Appeal in Francis Kamote Mutua vs Republic (1988) eKLR stated that:-'It must be remembered that a person has been convicted by a properly constituted Court, and is undergoing punishment, because of that conviction, which stands until set aside on appeal. It is not wise to intervene either from the point of view of the welfare of the Appellant or the State, unless there is a real reason why the Court should hold that he should not be deprived of his liberty. The best test of that consideration is whether the Appellant can show an overwhelming chance of establishing his right to be set at liberty. If he does not do so, the law should take its ordinary course.'

17. In the case ofCharles Owanga Aluoch vs Director of Public Prosecutions [2015] eKLR the court held that:'The right to bail is provided under Article 49(1) of theConstitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial. After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored. In the case of JivRaj Shah vs R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:1. Existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail.2. It appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of a 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, then, a condition of granting bail will exist.Main criteria is that there is no difference between overwhelming chances of success and set of circumstances which disclose substantial merit in the appeal – being allowed, the particular circumstances and weight and relevance of the points to be argued.'

18. The principles were echoed by Odunga J, as he then was, in Joshua Kiarie Njuguna v Republic (supra) as follows:-'It is therefore clear that a different test from that applied in bail pending trial is applied in bail pending appeal. When considering an application for bail pending appeal, the Court has discretion in the matter which must be exercised judicially taking into consideration various factors as follows:a.Whether the appeal has overwhelming chances of success. See Ademba vs Republic [1983] KLR 442, Somo vs R [1972] EA 476, Mutua vs R [1988] KLR 497;b.There are exceptional or unusual circumstances to warrant the Court’s exercise of its discretion. See Raghbir Singh Lamba vs R [1958] EA 37; Jivraj Shah vs R [1986] eKLR; Somo vs R (supra); Mutua vs R (supra);c.There is a high probability of the sentence being served before the appeal is heard. See Chimabhai vs R [1971] EA 343. '

19. I have carefully considered the grounds of Appeal as well as the Cross Appeal. The Appeal is on the legality of the sentence while the cross Appeal is on the conviction and the sentence. Sentencing is a discretionary function which an appellate court can only interfere with in exceptional circumstances. The assertion that the Applicant paid the full amount appropriated cannot perse be used to interfere with the conviction and sentence imposed by the trial court as the same was done in a civil matter which is distinct from the criminal case. I am in the circumstances not convinced that the cross-appeal elicits an overwhelming chance of success.

20. In regard to the second issue, Counsel for the applicant has presented medical reports from the State Department for Correctional Services, Kenya Prisons Services that paint a dire picture of the applicant’s medical condition. The reports state that he is aged, was admitted twice at Kenyatta National Hospital in 2021, that he exhibits signs of facial nerve palsy with slurred speech and occasional drooling and that the applicant has left sided body weakness and is currently using a wheel chair and walking aids. Be that as it may the position is that ill health is not in itself a ground for granting bail pending appeal as there are medical facilities in prison that can handle such a situation. (See the case of Dominic Daniel Karanja vs Republic (1986) eKLR where the court held as follows:'The most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty. The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicant and the hardship, if any, facing the wife and children of the applicant are not exceptional or unusual factors: see Somo v Republic [1972] EA 476. A solemn assertion by an applicant that he will not abscond if he is released is not sufficient ground, even with support of sureties, for releasing a convicted person on bail pending appeal. The applicant was certified to be fit by a doctor on September 23, 1986 and so no issue of ill health arises. We are not to be taken to mean that ill-health per se would constitute an exceptional or unusual circumstance in every case. There exist medical facilities for prisoners in the country.')

21. In my view recourse lies in the expeditious disposal of the Appeal and the Cross Appeal. This application has no merit and the same is rejected and parties are urged to file their submissions within 28 days (14 days for either side) so that the Appeal and Cross Appeal can be expedited. Indeed, I must state that the time it has taken this court to hear this application and the various other applications made by the applicant was sufficient to hear and determine the appeal and cross appeal.

SIGNED, DATED AND DELIVERED VIRTUALLY THIS 6TH DAY OF OCTOBER, 2022E N MAINAJUDGE