[2025] KEHC 2859 (KLR)

Irungu v Republic (Criminal Case E030 of 2024) [2025] KEHC 2859 (KLR) (12 March 2025) (Ruling)

Neutral citation: [2025] KEHC 2859 (KLR)

Republic of Kenya

In the High Court at Murang'a

Criminal Case E030 of 2024

CW Githua, J

March 12, 2025

Between

Dorcas Wanjiru Irungu

Applicant

and

Republic

Respondent

Ruling

1. The applicant, Dorcas Wanjiru Irungu, jointly with others who are not parties to this appeal, was tried and convicted in the lower court with two different offences. In count 1, she was convicted of the offence of stealing by servant contrary to Section 281 of the Penal Code while in count 5, she was convicted of the offence of conspiracy to defraud contrary to Section 317 of the Penal Code.

2. In count1, the appellant (the applicant) and some of her co- accused were sentenced to serve 3 years imprisonment while in count 5, she was sentenced to serve one year imprisonment. The sentences were ordered to run concurrently.

3. The applicant was aggrieved by her conviction and sentence. She proffered the instant appeal vide a Petition of Appeal filed on 8th May 2024.

4. Pending the hearing and determination of the appeal, the applicant through her advocates then on record Ms. Bwonwonga & Co. Advocates approached this court vide a Chamber Summons dated 15th May 2024 seeking that she be released on bail or bond pending the determination of her appeal.

5. The application was mainly premised on grounds that the applicant’s appeal has overwhelming chances of success and that it would be unfair to deprive her of her freedom and liberty pending it’s conclusion; that given the court’s workload, the applicant was likely to complete serving her sentence before she was heard on her appeal; that she was a single mother with a young family which was suffering due to her incarceration and finally, that if released, she cannot abscond since she was out on bond during the trial and she faithfully attended the trial court and did not abscond. These grounds were advanced in two affidavits sworn in support of the application. One of the affidavits was sworn, irregularly I must say, by a Mr. Peter Irungu Maina who described himself as the applicant’s father and the other one was sworn by the applicant on 17th October 2024.

6. The application was canvassed before me by way of oral submissions. At the hearing, the applicant was represented by learned counsel Ms. Waititu while the Republic was represented by learned prosecution counsel, Ms. Muriu. In her submissions, Ms. Waititu re-iterated the grounds premising the application and further implored me to allow the application on grounds that the applicant was a mother of four (4) children who did not have anyone to take care of them as her husband was a matatu driver and has to leave home very early in the morning and return only at night given the nature of his job.

7. Ms. Waititu also averred that the applicant was suffering from a medical condition known as Hernia which required to be surgically removed and that her continued incarceration might worsen her condition; that she needed to be admitted to bail or bond pending appeal to enable her access effective treatment.

8. On her part, Ms. Muriu, opposed the application and submitted that the applicant’s right to be admitted to bail or bond pending appeal was not absolute considering that her right to the presumption of innocence had already been taken away by her conviction. She contended that the applicant had not proved that there existed unusual or exceptional circumstances that would warrant her admission to bail pending appeal given that her children had a caregiver in the person of their father and further, she had not demonstrated that she was unable to get proper medical attention for her medical condition while in prison.

9. In addition, Ms. Muriu argued that the appeal did not raise substantial points of law neither did it have high chances of success. She averred that as the prosecution, they were ready to fast track hearing of the appeal.

10. In response, Ms. Waititu submitted that it may not be possible for the prosecution to fast track hearing of the applicant’s appeal since the trial court’s original record was forwarded to this court before certified copies of proceedings were ready for certification following the filing of revision applications by two of the applicant’s co-accused being HCCREV. E220 and E221 of 2024 which are still pending hearing; that it may therefore take the applicant a long time to prepare and file her record of appeal to allow for directions to be taken on disposal of the appeal.

11. I have carefully considered the grounds of appeal, the judgement by the learned trial magistrate and the rival submissions made by both parties in support and in opposition to the application. I find that the only issue for my determination is whether the applicant has demonstrated that her application was merited.

12. The starting point is the law governing the right to bail or bond pending the hearing and determination of an appeal. Section 357 (1) of the Criminal Procedure Code which provides for this right leaves no doubt that grant of bond or bail pending appeal is at the discretion of the court. To be successful in such an application, the applicant must convince the court that exceptional or unusual circumstances existed to justify exercise of the court’s discretion in his or her favour or that the appeal had overwhelming chances of success which would make it unjust to deprive the applicant of his or her liberty pending an appeal which was likely to be eventually allowed.

13. When discussing the factors which courts should consider when exercising their discretion in applications for bond pending appeal, the Court of Appeal in Daniel Dominic Karanja V Republic (1986) expressed itself as follows;“….The most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty. The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicant and the hardship, if any, facing the wife and children of the applicant are not exceptional or unusual factors: see Somo v Republic [1972] E A 476. A solemn assertion by an applicant that he will not abscond if he is released is not sufficient ground, even with support of sureties, for releasing a convicted person on bail pending appeal.”

14. The same court in Jivraj Shah V Republic [1986] KECA 36 (KLR) guided as follows:“….the principal consideration is if there exist exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. 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 a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist…..”

15. In this case, some of the grounds advanced by the applicant that she was unwell and that her children were suffering for lack of a caregiver due to her incarceration do not establish unusual or exceptional circumstances that may warrant grant of the orders sought. Her children still have their father who despite the nature of his employment can still organize for their care and protection and more importantly, the applicant has not demonstrated that she cannot access proper medical attention in the prison’s health facilities.

16. The fact that she was out on bond during the trial and she did not abscond is not sufficient reason to justify her admission to bond pending conclusion of her appeal. As correctly submitted by the learned prosecution counsel, she is no longer a suspect like she was during the trial when she enjoyed the presumption of innocence. Her circumstances have now changed. She is now a convict and the fact of conviction extinguished her right to the presumption of innocence.

17. The only reason that in my view presents exceptional circumstances which may justify her admission to bond pending hearing and determination of her appeal is the undisputed claim that the original record of the trial court was forwarded to this court before the trial courts typed proceedings were ready for certification following revision applications made by her two co-accused persons which applications are still pending hearing. I have looked at the typed proceedings in the lower court file and I confirm that they are still in draft form.

18. Given the foregoing and considering that it is not clear when the revision applications will be determined, it is apparent that since the file has to be returned to the trial court for certification of proceedings after the revision applications are concluded, it may take a long time before the lower court file is returned to this court for directions on admission and disposal of the appeal. Given that the applicant was sentenced on 2nd May 2024, it is likely that she may have served a substantial part of her sentence before her appeal was heard and determined.

19. Having found as I have above, even without considering whether or not the applicant’s appeal has chances of success, I am persuaded to find that the applicant has met the threshold of admission to bond pending hearing and determination of her appeal. Her application is therefore merited and is hereby allowed on the following terms;i.The applicant will be released upon executing her personal bond of Kshs. 500,000 together with one surety of a similar amount. The surety will be approved by the Hon. Deputy Registrar of this court.ii.Upon her release, the applicant shall attend mentions before the Hon. Deputy Registrar on the first Monday of each alternate month with effect from April this year until further orders of this court.iii.The applicant shall also attend this court on all dates fixed for mention or hearing of the appeal without fail.iv.Failure to comply with any of the above conditions shall lead to cancellation of the applicant’s bond.

20. It is so ordered.

DATED, SIGNED AND DELIVERED AT MURANGA THIS 12TH MARCH 2025. HON. C. W. GITHUAJUDGEIn the presence of:The Appellant/ApplicantMs Waititu for the ApplicantMs Muriu for the RespondentMs Susan Waiganjo, Court Assistant