[2022] KEHC 1793 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CRIMINAL APPEAL 19 OF 2020

(CORAM: F.M. GIKONYO J.)

(From the conviction and sentence by Hon. W. Juma (C.M) in Narok

CMCR No. 568 of 2016 on 18th December 2019)

IBRAHIM ABDULLAHI ALIAS ALUSHI.......1ST APPELLANT/APPLICANT

BASHIR IBRAHIM...............................................2ND APELLANT/APPLICANT

-VERSUS-

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

RULING

Bail Pending Appeal

[1]. Pending the hearing and determination of this appeal, the appellants have applied to be admitted to bail.

[2]. Mr. Chigiti SC, advocate for the 2nd appellant/applicant argued that the appellants are young people who could help with nation building while appeal is being done. He urged the court to take judicial notice of the presence of Covid-19 pandemic.

[3]. He further argued that the nation is moving to election that creates challenges. He, therefore, urged the court to look at the bill of rights and grant his client bail. Mr. Chigiti, proposed as a condition of bail that, the appellants will submit themselves to the police station every fortnight.

[4]. Mr. Olewe for the 1st appellant/applicant supported the application by Mr. Chigiti. He added that the appellants are ready to report to DCI as will be directed. He urged this court to release them on bail pending appeal.

[5]. The application was opposed by the Respondent vide the replying affidavit sworn on 15th December 2021 by Anthony Karanja Ndungu; the prosecution counsel.

[6]. It was averred that the two appellants have already been convicted by the trial court and are serving a legitimate sentence imposed by court, thus, the rights set out under Article 49(1) (h) of the Constitution are not applicable in this case.

[7]. The respondent contends that the granting of bond pending appeal is not a right but rather discretionary remedy. The appellant must therefore, prove why the court should exercise discretion in his favor.

[8]. The respondent stated that with the conviction and sentence of death, the Appellants’ chances of absconding are extremely high as it is not certain whether the court will uphold their appeal or dismiss it.

[9]. The respondent argued further that the appellants were convicted of aggravated robbery with violence where an innocent person Richard Simiren lost his life rendering his wife and child destitute.

[10]. That the appellants having complied with the bond terms issued by the trial court during the lower court proceedings is not a factor to be considered in granting bond, rather it is exceptional circumstances that would warrant the court to grant bond. see David Kimani Kuria V Republic [2021] eKLR

[11]. The respondent contend that the prison authorities throughout Kenya have taken measures to prevent the spread of Covid-19 pandemic in the prisons and have even designated certain prisons as quarantine centers for example Naivasha Maximum Prison was quarantine Centre when Covid-19 was at its peak. For Narok GK Prison remandees would be isolated for 14 days and then tested for Covid-19 before being cleared and send to Narok GK Prison. That prisons have complied with ministry of health guidelines.

[12]. The respondent contends that the delay in having this appeal heard and determined is partly due to the appellants having filed an incomplete record of appeal and which the respondent has been raising concerns about.

[13]. That the appellants would not have substantially served their terms before the appeal is determined as they were convicted to a death sentence.

[14]. That appellants have not demonstrated any exceptional circumstances that would move the court to exercise its discretion and grant the appellants bond pending appeal.

ANALYSIS AND DETERMINATION

[15]. I have carefully considered the oral application and submissions made as well as the replying affidavit filed hereto. Are there grounds on which the appellants may be released on bail pending appeal?

Nature of bail pending appeal

[16]. Unlike an accused person facing trial, the appellants have already been convicted and have lost the presumption of innocence. Therefore, a different test applies to bail pending the hearing of appeal.

[17]. Section 357(1) of the Criminal Procedure Code provides for bail pending appeal in the following manner:

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.

The test

[18]. Judicial decisions show that, in determining whether or not to grant bail pending appeal, the court should consider: -

i). Whether the appeal has overwhelming chances of success. See Ademba vs. Republic [1983] KLR 442, Somo vs. R [1972] EA 476, Mutua vs. R [1988] KLR 497;

ii). Whether there are exceptional or unusual circumstances to warrant exercise of court’s discretion into releasing the appellant on bail. See Raghbir Singh Lamba vs. R [1958] EA 37; Jivraj Shah vs. R [1986] eKLR; Somo vs. R (supra); Mutua vs. R (supra);

iii). Whether there is a high probability of the sentence being served before the appeal is heard. See Chimabhai vs. R [1971] EA 343.

[19]. These matters fall on the applicant to prove. See Raghbir Singh Lamba v R [1958] 1 EA 337(High Court of Tanganyika) Spry Ag J at page 338.

Chance of success

[20]. Parties herein did not argue the point whether the appeal has overwhelming chances of success. Suffice it to say, however, that the appeal has been admitted to, and set down for hearing on 18/5/2022. There is also no apprehension of, or anticipated delay in the hearing of the appeal. Under the command of the Constitution and the overriding objective of the law, the appeal should be heard on the appointed date; parties are expected to discharge their statutory obligation thereto.

Possibility of serving substantial part of sentence

[21]. The applicants were sentenced to death in Narok Chief Magistrate’s Court in CMCR No. 568 of 2016 for the offence of robbery with violence under Section 295 as read with Section 296(2) of the Penal Code. The sentence was, nonetheless, commuted to life imprisonment by the President in exercise of the power of mercy. Thus, except where circumstances support, it would be untenable in his case to argue that the applicants will have served the sentence, or substantial part thereof, before the appeal is heard and determined.

Exceptional circumstances

[22]. Exceptional circumstances which may prompt the court to release the appellants on bail pending appeal depend on the circumstances of the case.

[23]. The defence argued that the court should take judicial notice of the presence of Covid-19 as well as the fact that the nation is going to elections in August 2022 which period brings unique challenges.

[24]. In respect of the former; it is in public domain that the prison authorities like all government entities have put in place measures in line with the protocols issued by the ministry of health to prevent or mitigate Covid-19 infections. Therefore, the mere fact that the appellants are in prison during this time of Covid-19 pandemic, is not in itself an exceptional circumstance.

[25]. In respect of the latter, there is nothing or set of circumstances on which one may anticipate challenges untoward or which will affect the prison during the election period.

[26]. The applicants further contended that they are young, and could be engaged in nation building as they await the outcome of the appeal. I do not think this is an exceptional circumstance lest every young person in the position of the appellants should claim automatic entitlement to bail pending appeal.

[27]. Before I close, I should state; the fact that the appellants had been released on bond during trial and did not abscond or faithfully attended court is not a sufficient ground to release a person on bail pending appeal. See Dominic Karanja v Republic (1986) KLR 612, that: -

(c) A 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;

Conclusions and orders

[28]. The appellants’ appeal is set down for hearing on 18th May, 2022. There is no reasonable anticipation of delay in the conclusion of this appeal. The appellants are serving life sentence. Thus, in the absence of supporting circumstances, the argument that they will have served the sentence or a substantial part thereof by the time the appeal is heard is not tenable. There is absolutely no exceptional circumstances in this case to warrant bail pending appeal,

[29]. In light of the foregoing, I find no merit in this application. The application is dismissed. Appellants be ready to prosecute their appeal on the appointed date. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 10TH DAY OF MARCH, 2022

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F. M. GIKONYO

JUDGE

In the presence of:

1. The appellants

2. Mr. Olewe for the 1st appellant

3. Mr. Chigiti for the 2nd appellant/ Wambui present

4. Mr. Ondimu for the Respondent - Absent

5. Mr. Kasaso CA