[2022] KEHC 2067 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J)

CRIMINAL APPEAL NO. E011 OF 2022

BETWEEN

DOMICIANO MWENDA M’ANINI.......................................APPELLANT/APPLICANT

AND

REPUBLIC.....................................................................................................RESPONDENT

RULING

1. DOMICIANO MWENDA M’ANINI (Appellant/Applicant) was charged inNKUBU CRIMINAL CASE NO. 511 of 2019 and convicted for obtaining money by false pretences contrary to section 331 of the Penal Code for which he was sentenced to serve 2 years’ imprisonment on 06. 01. 2022.

2. By a Notice of Motion dated 06. 01. 2022 filed on 25. 01. 2022 brought under Section 357 (1) of the Criminal Procedure Code, Appellant has moved the court for orders that he be admitted to bail pending the hearing and determination of the appeal mainly on the ground that the appeal has a high chance of success.

3. The application is supported by an affidavit sworn by the Appellant on 25. 01. 2022 in which he reiterates the grounds on the face of the application.

4. Ms. Mwaniki for the state submitted that the application was not opposed.

Analysis and Determination

5. I have carefully considered the application in the light of the affidavit on record and the response on behalf of the State.

6. Section 357 of the Criminal Procedure Code provides: -

(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

7. This court is thus clothed with the power to grant bail/bond with or without sureties, or to suspend execution of any sentence imposed by the subordinate court pending the hearing of the appeal. In granting bail pending appeal, the court is obliged to consider the circumstances of each case so that the discretion is exercised judiciously and not capriciously.

8. In the case of Jivraj Shah -vs- Republic [1980] KLR 605, the Court of Appeal set out the parameters to be considered by an appellate court in applications for bail pending appeal as follows: -

a) The principal consideration in an application for bail pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interests of justice to grant bail

b) If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist.

c) The main criteria is 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.

9. In Mutua v R, [1988] KLR 497the Court of Appeal stated thus:

“It must be remembered that an applicant for bail has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal. It is not wise to set the applicant at liberty either from the point of view of his welfare or of the state unless there is a real reason why the court should do so.”

10. In view of the foregoing, the onus is always on the Appellant to demonstrate to the court that there are good reasons why he/she should not be allowed to continue serving sentence but should be allowed to enjoy his/her liberty pending the hearing and determination of his or her appeal.

11. The Appellant/Applicant avers that the appeal has a high chance of success which the state does not oppose.

12. For the foregoing reasons, the Notice of Motion dated 06. 01. 2022 and filed on 25. 01. 2022 allowed in the following terms:

1) Appellant/Applicant shall be released on a cash bail of Kshs. 100,000/- pending the hearing and determination of the appeal

2) Mention on 24th March, 2022 to confirm filing of the Appeal

DELIVERED IN MERU THIS 24TH DAY OF FEBRUARY 2022

WAMAE. T. W. CHERERE

JUDGE

Court Assistant - Kinoti

Appellant/Applicant - Absent

For the Appellant/Applicant -Ms. Mukaburu Advocate

For the Respondent - Ms. Mwaniki