[2017] KEHC 1268 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CRIMINAL APPEAL NO. 51 OF 2017

DOUGLAS MUTUNGA MUTHENYA...............................................APPLICANT

VERSUS

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

RULING

The Applicant was charged in the Chief Magistrate’s Court at Machakos Criminal Case No.878 of 2015 with the offence of defilement contrary to section 8(1) and (3) of the Sexual Offences Act. He was convicted of the offence by the trial court, and sentenced to 10 years imprisonment on 13th April 2017.

The Applicant subsequently filed an appeal against the judgment of the trial Court by way of a Petition of Appeal filed in this Court on 27th April 2015. He also filed an application herein by way of a Notice of Motion dated 25th May 2017, which was supported by an affidavit the Applicant swore on the same date. The Applicant in the said application is seeking orders that he be granted bond/bail pending the hearing and determination of this appeal.

The main grounds for his application are that his appeal has an overwhelming chance of success, there are no compelling reasons to deny him bail and he has a constitutional right to the same, and that he and his family members are ready and willing to abide with the terms set by the Court.

The Applicant’s learned counsel, Mulwa, Isika & Company Advocates, filed written submissions dated 2nd August 2017, wherein they urged that the Applicant’s appeal has high chances of success as his defence of alibi was not considered by the trial Court, and that he was convicted on attempted defilement, when the charge was one of defilement with an alternative charge of committing an indecent act with a child. Further, that by the time the appeal is heard the Applicant may have served a substantial term of his sentence, and that he had complied with bail conditions that were granted by the trial court.

The Prosecution relied on a replying affidavit sworn on 6th July 2017 by Rita Chelangat Rono, the learned Prosecution Counsel, wherein she deponed that the Applicant has not demonstrated that his appeal has high chances of success. Further, that Article 49 of the Constitution no longer applies to the Applicant since he was tried and convicted in a court with competent jurisdiction, and that the solemn assertion by an Applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal.

I have considered the pleadings and submissions by the Applicant and Prosecution. The provision of law that applies to bond/bail pending appeal is section 357 of the Criminal Procedure Code 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:

Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.

(2) If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.

In Mutua vs R, [1988] KLR 497 the Court of Appeal stated thus as regards the exercise of the Court’s discretion in an application for bond/bail pending appeal:

“ 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 or 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.”

A different test from that applied in bail pending trial is therefore 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] E.A 476, Mutua vs R [1988] KLR 497in this regard;

b) There are exceptional or unusual circumstances to warrant the court's exercise of its discretion. In this regard see Raghbir Singh Lamba vs R [1958] E.A 337; Somo vs R(supra.); Mutua vs R (supra.)

c) There is a high probability of the sentence being served before the appeal is heard as held in Chimabhai vs R, [1971] E.A 343.

In the instant application, the Applicant has argued that his defence of alibi was not considered. I have perused the judgment of the trial Court and note that this defence was indeed considered and found not to have been established. I have also perused the record of the trial Court, and note that the trial Court convicted the Applicant on the basis of evidence adduced by the Prosecution. The issue as to the legality of the conviction is one that has to be subjected to further arguments during hearing and cannot be established at this stage.

I am therefore satisfied that this is not a proper case in which to exercise this court's discretion in favour of the Applicant. I therefore decline to grant the orders sought in the Applicant’s Notice of Motion dated 25th May 2017.

There shall be no order as to costs.

It is so ordered.

DATED AT MACHAKOS THIS 4TH OCTOBER 2017.

P. NYAMWEYA

JUDGE