[2015] KEHC 2586 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 28 OF 2015

JACKLINE WANJIRU NJOKI..................... APPELLANT/APPLICANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION..................RESPONDENT

R U L I N G

This is a ruling on an application for bail pending appeal brought by the applicant Jackline Wanjiru Njoki under Section 357 of the Criminal Procedure Code.

It is supported by the affidavit of the applicant in which she depones that she was charged and convicted in Embu Cr. Case No. 1914 of 2014 with the offence of breaking into a building and committing a felony contrary to Section 306(a) of the Penal Code with an alternative charge of handling stolen goods contrary to Section 323 of the Penal Code. She was sentenced to 5 years imprisonment in count 1 and one year imprisonment in count 2.

The applicant was represented by Ms. Thungu who opted to rely wholly on the supporting affidavit of the applicant. The applicant stated that she was dissatisfied with the judgment of the trial magistrate hence she lodged this appeal. It is further stated that her appeal has high chances of success and that she is in poor health and constantly on medication. Further that during the trial she was on bail and attended court faithfully. It is her prayer that if she granted bail she will attend court as required until the appeal is hear and determined.

In her petition of appeal, the applicant challenges the judgment in that he relied on contradictory evidence of the prosecution. She further states that the prosecution failed to consider that the house from which the stolen property was recovered was shared with other people and that her alibi defence was not considered.

The respondent opposed the application in its replying affidavit sworn by Ms. Matere Celestine the prosecuting counsel. She stated that the application does not disclose any unique circumstances to justify granting the orders sought. The appeal has no chances of success.

The conditions of granting bail pending appeal are at the discretion of the court and require that certain conditions be satisfied. In the case of DOMINIC KARANJA VS REPUBLIC [1986] KLR 612the Court of Appeal laid down the principles to be considered in granting bail pending appeal thus:-

1. That the most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.

2. The previous good character of the application and the hardships, if any, facing his family were not exceptional or unusual factors. Ill health per se would also not constitute and exceptional circumstances where there existed medical facilities for prisoners.

3. 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.

The evidence before the trial court may be briefly stated. On 14/12/2014 PW1 a pastor of Livingstone International Church in Embu town discovered that the church had been broken into. The access was gained through the widow and one door was also broken. The properties missing from therein included 2 speakers, an amplifier, a mixer, a DVD, a microphone receiver and 5 curtains. Police recovered the speaker, the amplifier, the speaker, the mixer, blue generator, key board, monitor, a flat screen TV make Star, time decoder, I woofer with 4 speakers and the memory speaker from the house of the 1st accused. The appellant was the wife of the 1st accused and she is the one who opened the door for the police when they made the recovery. The appellant and 2nd accused claimed that the property belonged to them but did not officer any evidence of ownership.

The magistrate relied on the evidence of recent possession to convict the appellant and her co-accused of the main charge. The applicant claims that the prosecution failed to establish the ownership or the occupation of the house in which the items were recovered. The prosecution’s evidence did not establish whether the applicant and her husband were occupying the same house. The applicant disputed the prosecution’s evidence on the occupation. This is an issue that may require to be interrogated further on appeal. I am of the opinion that the appeal has some chances of success. The applicant was convicted of both the main charge and the alternative charge.

For these reasons I find that the applicant has satisfied the requirement for bail pending appeal. The application is accordingly allowed on the following terms:-

1. That the applicant will be released on bond of KShs.300,000/= with one surety of similar amount.

2. That she will attend monthly mentions until the appeal is finally heard and determined.

3. That she will not leave the jurisdiction of this court without permission.

It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 30TH DAY OF SEPTEMBER, 2015.

F.MUCHEMI

JUDGE

In the presence of:-

Ms. Thungu for appellant

Ms. Matere for respondent