[2023] KEHC 25435 (KLR)

Furugensi v Republic (Miscellaneous Criminal Application E52 of 2023) [2023] KEHC 25435 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25435 (KLR)

Republic of Kenya

In the High Court at Makueni

Miscellaneous Criminal Application E52 of 2023

TM Matheka, J

November 15, 2023

Between

Pius Paskale Furugensi

Appellant

and

Republic

Respondent

Ruling

1. The applicant was on 18th September 2023, in Kilungu PMCR No E480/2023 convicted (on 2 counts) for the offence of stupefying in order to commit a felony Contrary to Section 230 of the Penal Code, and stealing Contrary to Section 275 of the same code.

2. The record shows that he pleaded guilty to both the charges and the facts and was sentenced to a custodial sentence of 3 years imprisonment on each count - sentences to run concurrently (Hon. F. Makoyo PM)

3. The applicant lodged his appeal against the conviction and sentence. Together with the petition he has filed an application seeking that he be allowed to file his appeal out of time and for bail pending appeal.

4. On the first prayer the state had no objection and the same was allowed in the first instance. He has filed Makueni HCCRA E050 of 2023.

5. On the issue of bail pending appeal, the State is opposed and takes the position that it would be effective and efficient for the court to proceed with the actual appeal. Section 357 of the Criminal Procedure Code does provide for bail pending appeal.

6. Unlike a person awaiting charge and trial - as provided for under Article 49(1) (h) of the Constitution speaks about the rights of arrested persons and says (1) An arrested person has the right— to bail pending a charge or trial unless there exists compelling reasons to deny the same- the person who has been convicted , and is already serving his sentence has right to bail but different principles apply – the applicant is required to demonstrate “the existence of exceptional or unusual circumstances upon which the court of appeal can fairly conclude that it is in the interest of justice to grant bail see Jiv Raji Shah v R [1966] KLR 605. The court is also required to consider whether the“appeal is likely to be successful on account of some substantial point of law to be argued and that the sentence or a substantial part of the sentence will have been served by the time the appeal is heard.”

7. I have carefully considered the application - there is no exceptional circumstance that has been demonstrated by the applicant to warrant the order sought never have I found a substantial point of law in the petition of appeal to be argued that gives the appeal an overwhelming chance of success. - Until the appeal is argued the court would not be able to determine that.

8. I have carefully considered the Pre Bail Report by Probation Officer Makueni. It states that the applicant is from Kangea Village, Misemi s/location, Misemi Location, Kisimba /County. Kisimba County in Tanzania. It is said that he lives in Nairobi with part of his family. That he moved to Kenya when he was 18 years old and settled in Mombasa but does not have a Kenya identity card or any Passport. It is stated that his friends are willing to pay a cash bail of Kshs 50,000. That the area administration in Changamwe Mombasa does not feel that he is a flight risk.

9. I am concerned by this report which seems to have thrown caution away. The applicant is already serving a sentence of imprisonment. He is from across the border. That by itself would not deny him bond. Our Constitution recognizes the rights of an accused person. While I appreciate the fact that our geographical borders are an imposition that denies the actual reality on the ground that we are one people, the fact of the other reality is that the fact of being from across the border by itself creates the opportunity for flight out of the jurisdiction of this court as soon as he is released on cash bail. The Probation Officer has not demonstrated that she has obtained any information from the ground in Changamwe or Magongo from the local Probation Office. There is no evidence of the local administration having been spoken to or any names of any uncle or family members in Nairobi who have been interviewed. It is reports like these that can create lack of trust in Social Inquiry Reports. PACS is a crucial member of the criminal justice system and should not do anything that might create doubt on the integrity of their reports. The fact is that in this case one would have expected more caution and a recommendation that is supported by the facts.

10. It is for these reasons that I reject the pre bail report.

11. In addition - there is no chance that the sentence will have been served before the appeal is heard and determined. Appeals do not delay in this court.

12. Ultimately I find the application for bail pending without merit. The same is dismissed and the file closed.

DATED, SIGNED AND DELIVERED THIS 15THNOVEMBER 2023. ........................................MUMBUA T MATHEKAJUDGEMaingi for the applicantTanui for stateApplicant present