[2021] KEHC 4720 (KLR)
The court held that the applicant failed to demonstrate any special circumstances justifying release on bail pending appeal. The court found that neither incarceration after conviction nor being a sole breadwinner for children constitutes a special circumstance. The applicant's alleged health risks due to underlying...
Source-derived case information.
- Citation
- [2021] KEHC 4720 (KLR)
- Parties
- Appellant: Felix Kiprono Kosgei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E008 of 2021
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Bail Pending Appeal, Defilement Offence, Special Circumstances, Flight Risk, Covid 19 Prison Risk
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Felix Kiprono Kosgei
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail or bond pending appeal.
- 2 Whether there are special circumstances justifying release on bail pending appeal.
- 3 Whether the appeal has high chances of success.
Ratio Decidendi
The court held that the applicant failed to demonstrate any special circumstances justifying release on bail pending appeal. The court found that neither incarceration after conviction nor being a sole breadwinner for children constitutes a special circumstance. The applicant's alleged health risks due to underlying conditions and Covid-19 were not substantiated, and the court took judicial notice of the prison service's effective Covid-19 mitigation measures. The court also found no plain or obvious inconsistencies or contradictions in the evidence that would indicate the appeal had high chances of success. Consequently, the application for bail or bond pending appeal was dismissed.
Court Disposition
application dismissed
Orders
- The application for bond or bail pending appeal is dismissed.
- The appeal is to be set down for hearing on a date available in the judge's diary.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
HCCRA NO. E008 OF 2021
FELIX KIPRONO KOSGEI............................................................................APPELLANT
VERSUS
REPUBLIC................................................................................................... RESPONDENT
RULING
The Applicant, FELIX KIPRONO KOSGEIwas convicted for the offence of Defilementcontrary to Section 8 (1) (3)of the Sexual Offences Act. He was then sentenced to 10 Years Imprisonment.
1. The Applicant has lodged an appeal to challenge both the conviction and the sentence.
2. Having lodged the appeal, the Applicant has also lodged an application for Bail or Bond pending appeal.
3. When canvassing the application Mr. Morata, the learned advocate for the Applicant, submitted that the appeal has high chances of success.
4. He said that there were glaring inconsistencies in the decision rendered by the trial court.
5. Secondly, he said that the evidence on identification did not meet the required standards.
6. Thirdly, he talked about material contradictions and inconsistencies on the dates when the offence was allegedly committed; as well as about the timelines and the places where the offence was committed.
7. The Applicant also noted that whilst PW1talked about injuries to the head, the police talked about strangulation: yet the P3 Form indicated that there were no injuries on the head and on the neck.
8. It was on that basis that the Applicant expressed the opinion that his appeal has high chances of success.
9. The Applicant also submitted about the special circumstances in this case, which were that he would have suffered incarceration before his appeal was heard and determined.
10. He pointed out that during trial, he was out on bond, and he never failed to attend court when required.
11. He informed the Court that he was a sickly man, who has serious “underlying conditions”, which put him at high risk of contracting infection from Covid 19.
12. The Applicant has 3 children, and he was their sole bread-winner. Therefore, he said that he could not be a flight-risk.
13. When answering to the application, Ms Odumba learned prosecuting counsel submitted that the Applicant had not demonstrated any special circumstances.
14. In that respect, I do share the views of the Respondent, because incarceration in prison after being convicted for an offence, and upon being sentenced to imprisonment, is not capable of being construed as special circumstances.
15. Similarly, the fact that the Applicant was the sole bread-winner for his 3 children is not special.
16. As regards the Applicant’s alleged “serious underlying conditions”, which would thus pre-dispose him to a greater risk of contracting the Covid 19, the Applicant did make out a persuasive case.
17. There is no basis upon which the Court could reach the conclusion that the Applicant was at a greater risk of contracting Covid 19.
18. In any event, this Court takes Judicial Notice of the fact that the Prison Service has generally done a marvelous job in safeguarding inmates from the Covid 19. In all probability, therefore, I find that the Applicant was unlikely to be at any greater risk of contracting the virus, if he is incarcerated.
19. I appreciate the fact that the Applicant was out on bond during the trial, and that he never flouted the bond terms. That is definitely, a credit to the Applicant.
20. Nonetheless, the mindset of an accused person who, by law, is presumed to be innocent until it is proved otherwise; and a convicted person facing a sentence of imprisonment for 10 years, may be quite different.
21. The Respondent described the Applicant as a flight-risk. But there is no material which the Respondent made available to the Court, to enable me evaluate whether or not the Applicant was a flight-risk. In the circumstances I decline to hold that the Applicant was a flight-risk.
22. As regards the alleged inconsistencies in the evidence, the Respondent was right when it submitted that it is whilst determining the appeal that the court will make the substantive determination of the issue.
23. However, it is equally true that if an Appellant was able to demonstrate some plain and obvious inconsistencies or contradictions in the evidence, the court may well find that the chances of the appeal succeeding were probably high. If the Court were to be convinced that the appeal had high chances of success, it would be inclined to grant bail or bond pending appeal.
24. In this case I have, on a prima facie basis, noted no material inconsistencies or contradictions which were either so plain or obvious as to enable me say that the appeal has high chances of success.
25. Therefore, I find no merit in the application for bond or bail pending the hearing of the appeal. I therefore dismiss the application.
26. Notwithstanding the dismissal of the application, I direct that the appeal be set down for hearing on a date available in my diary.
DATED, SIGNED and DELIVERED at KISUMU
THIS 21ST DAY OF JULY 2021
FRED A. OCHIENG
JUDGE