[2022] KEHC 15779 (KLR)

Gitobu v Republic (Criminal Appeal E098 of 2022) [2022] KEHC 15779 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 15779 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E098 of 2022

TW Cherere, J

December 1, 2022

Between

Haron Mwenda Gitobu

Appellant

and

Republic

Respondent

Ruling

1. Haron Mwenda Gitobu(appellant/applicant) by a Notice of Motion dated October 6, 2022 has moved the court for orders that the bond terms granted by the trial court be extended pending the hearing and determination of the appeal on grounds among others that he is sick with chronic peptic ulcers, positive h-pylori, obstructive pulmonary disease and requires special care that is not available in prison. The application is supported by an affidavit sworn by the applicant on October 6, 2022.

2. Ms. Mwaniki for the state opposed did not oppose the application.

Analysis and Determination 3. I have carefully considered the application in the light of the affidavit on record and the response on behalf of the State.

4. Section 357 of the Criminal Procedure Codeprovides: -(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

5. 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.

6. 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 bailb.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.

7. In Mutua v R, [1988] KLR 497 the 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/applicant 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.

8. It is expected that appellant would only appeal when an appeal has high chances of success and that every person released on bond abides by the terms of the bond.

9. I have considered the note from Meru Teaching and Referral Hospital and it is not accompanied by any treatment notes to confirm that applicant’s ailments cannot be attended to while in Prison and even if they cannot, the Prison Service under whose care he has been placed have a duty to take him to the nearest medical facility. Consequently, I am not persuaded that applicant has demonstrated existence of any exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interests of justice to grant bail pending appeal.

10. Consequently, I find that the appellant/applicant who is convicted and is undergoing punishment because of that conviction has not passed the test for grant of bond pending appeal.

11. In the end, the notice of motion dated October 6, 2022 is considered and found to have no merit and it is disallowed.

DELIVERED IN MERU THIS 01ST DAY OF DECEMBER 2022WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant KinotiAppellant/Applicant - PresentFor the Appellant/Applicant -Mr. Otieno AdvocateFor the Respondent - Ms. Mwaniki (PPC)