[2022] KEHC 10066 (KLR)

Ekoit v Republic (Criminal Appeal E066 of 2022) [2022] KEHC 10066 (KLR) (Crim) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10066 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E066 of 2022

JM Bwonwong'a, J

July 19, 2022

Between

Amos Ekoit

Applicant

and

Republic

Respondent

(Being an application for bail pending appeal from the judgement of the Hon Ananda Gandani, CM, dated 26/11/2021 in the Chief Magistrates’ Court at Kibera in Criminal Case No. 40 of 2014, Republic v 1. Mary Wambui Njehia 2. Joseph Kinyua Kinuthia 3. Amos) Ekoit)

Ruling

1The applicant moved this court under certificate of urgency pursuant to section 357 of theCriminal Procedure Code (Cap 75) Laws of Kenya in which he has sought the following major orders.1. Spent2. An order to release him on bail pending the hearing and determination of his appeal following his conviction and sentence of three years imprisonment in respect of the offence of obtaining goods by false pretences contrary to section 313 of the Penal Code (Cap 63) Laws of Kenya.

2The application is based on the following major grounds. The appellant has filed an appeal which has overwhelming chances of success both in respect of conviction and sentence. The burden of proof was shifted to the appellant. The offence was not proved beyond reasonable doubt. The trial of the appellant was not fair. The charge was defective. The defence of the appellant was not considered.

3Furthermore, the appellant has stated that he is not a flight risk. He has also stated that he is a student with a known place of fixed abode. The appellant has also stated that his appeal will be rendered nugatory if it is successful.

4In addition to the foregoing, the appellant’s advocate (Mr. Timothy Okelo) has deposed to a nine paragraphs supporting affidavit, in which he has replicated the grounds in support of his motion, which I hereby decline to set out.

The submissions of the appellant 5Counsel for the appellant (Messrs Odiwuor Okelo & Co Advocates) have filed written submissions.

6He has submitted that the appellant was on a cash bail of shs 50,000/- during his trial in the lower court. He attended his trial religiously without fail. He has further submitted that the appeal stands overwhelming chances of success and unless he released on bail pending his appeal, his appeal may be rendered nugatory.

7Furthermore, counsel has cited section 357 of the Criminal Procedure Code (Cap 75) Laws of Kenya; which empowers the court to release an appellant on bail pending the hearing and determination of his appeal.

8Additionally, counsel has cited Jivraj Shah v Republic (1986) eKLR, in which the court while granting bail pending appeal stated that the principal consideration in an application for bail pending appeal is if there exist exceptional or unusual circumstances upon which the court could fairly conclude that it is in the interests of justice to grant bail. If it appears that the appeal is likely to succeed on account of some substantial point of law to be urged and that the sentence or part of it will have been served by the time the appeal is heard, conditions for granting bail exist.

9The foregoing principle of law is restated in Somo v R (1972) EA 476 and the other authorities cited by counsel for the appellant.

Submissions of counsel for the respondent 10Ms. Maureen Akunja, counsel for the respondent submitted that the grant of bail is a discretional matter for the court; since the applicant lost the presumption of innocence following his conviction.

11She has submitted that the appellant has not demonstrated the following. The existence of exceptional or unusual circumstances to warrant the grant of his application. The appeal lacks chances of overwhelming chances of success. The applicant will not have served a substantial part of his sentence by the time the appeal is heard and determined.

Issues for determination 12I have considered the affidavit and submissions of counsel for the appellant and the applicable law. I have also considered the submissions of counsel for the respondent. As a result, I find the following to be the issues for determination.1whether the appeal has overwhelming chances of success.2. Whether there are exceptional circumstances involved in the appeal

Issue 1 13I have the perused the grounds of appeal, the judgement and the affidavit of the appellant. I find that the appellant that the appeal has overwhelming chances of success both in respect of conviction and sentence. As regards, sentence the court sentenced the appellant to the maximum sentence of three years, who was a first offender; which is unusual for a first offender.

14I find that there is a high likelihood that the sentence might be interfered with on appeal. And in this regard, I find as persuasive the decision of the court in Jivraj Shah v Republic, supra. I therefore find that the appellant will have served a substantial part of his sentence by the time the appeal is heard and determined. Additionally, I find that the appeal in respect of sentence has overwhelming chances of success.

15In the circumstances, I find that the application succeeds with the result the appellant is hereby released on bail pending the hearing and determination of his appeal.

16In respect of the conditions and terms of his release on bail/bond pending the hearing and determination of his appeal, I hereby release the appellant on a cash bail of shs 50,000/-. Those are the orders of this court.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THROUGH VIDEO CONFERENCE ON THIS 19TH DAY OF JULY 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua: Court AssistantMr. Okelo for the appellantMs Ntabo for the Republic/Respondent