[2017] KEHC 6948 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

MISC. CRIMINAL APPLICATION NO.19 OF 2016

JACKSON NDOLO KIKUVI...........................................APPLICANT

VERSUS

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

RULING OF THE COURT

1. Application

The Appellant/Applicant has filed an Application dated 1/3/2016 which primarily seeks that he be admitted to bail pending appeal on such terms and conditions as the court may deem fit. The application is supported by an affidavit of the Appellant/Applicant and on the following grounds namely:-

1. THAT the Appellant will be prejudiced as the appeal may take time to be determined.

2. THAT the Appellant has two children both in form one now under the care of their unemployed mother who is also looking after the appellant’s elderly and ailing crippled father.

3. THAT the Appellant is an employee with the T.S.C. and has been placed on no salary at all by the employer meaning he was cancelled from the pay-roll since December, 2013.

4. THAT the Appellant’s Appeal has overwhelming chances of success and it is in the interest of justice that the application be allowed.

2. The Application was opposed by the Respondent which raised the following grounds:-

1. The Appellant has not demonstrated that his appeal has high chances of success.

2. The evidence adduced at the trial was credible, consistent and well corroborated and thus the Appeal has no chances of success.

3. The solemn assertion that the Appellant will not abscond if released on bond is not sufficient ground for releasing a convicted person on bail pending appeal.

4. The Appellant has failed to satisfy the extreme high standard for bail pending appeal as per cardinal principles of criminal law.

5. The interest of justice for both parties herein calls for setting down the appeal for speedy hearing and determination.

6. The application be dismissed.

3. Submissions:

Learned Counsels for the Appellant and Respondent presented oral submissions. Counsel for the Appellant submitted that the Appeal has high chances of success and attacked the lower court’s judgment wherein the Appellant was convicted for an offence of attempted defilement and in which the trial court had adopted strange ingredients in establishing the charge. Counsel further submitted that the ingredients adopted by the trial court were off the mark as it did not dwell with the definition of “penetration” in the Sexual Offences Act. It was further submitted for the Appellant that he is a family man with children in school. Learned counsel for the Respondent submitted that the Appellant has not demonstrated that his appeal has high chances of success. He further submitted that the evidence in the lower court was overwhelming against the Appellant who was found in a lodging room with the complainant before the police arrested him. It was further submitted for the Respondent that the offence of attempted defilement was properly proved and that in every crime there must be intention, preparation to commit and the actual act of committing a crime which were established save for the last stage of committing the act. Finally Respondents counsel submitted that the issue of penetration or partial in regard to attempted defilement is not necessary and relied on the case of MUNJIA MICHUBU VS REPUBLIC MERU HCCRA NO.100 OF 2013.

4. Determination:

I have considered the Appellants application as well as the affidavits in support and in opposition thereto. I have also considered the oral submissions of learned counsels for the parties, I have also considered the cited authority. The only issue for determination by this court is whether the Appellant has discharged the burden of establishing that his Appeal has high chances of success and whether there exists exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail.

The Appellant has stated that his Appeal has high chances of success. Appellants counsel has hinged his submissions on the fact that the lower court considered strange ingredients while determining whether the offence of attempted defilement had been proved. As far as the counsel for the Appellant is concerned attempted defilement should only be proved by full or partial penetration of the complainant’s genital organ by a male organ. On the other hand the Respondents counsel submits that the issue of full or partial penetration may not be necessary as long as the intention and preparation are established. In the case of DOMINIC KARANJA =VS= REPUBLIC [1986] KLR 612the court of Appeal held that the most important issues to be considered on bail pending appeal was whether the Appeal has such overwhelming chances of success and also whether there are exceptional or unusual circumstances. I have perused the Petition of appeal as well as the proceedings and judgment of the lower court. The appellant had been charged with two counts and an alternative charge and that the lower court convicted him on the two counts. It seems the Appellant has only dwelt on one of the counts while pitching for bond pending appeal and left out the others. I have to be careful that I do not pre-empt the appeal but at this stage my considered view is that the Appeal may be arguable but the likelihood of an overwhelming success is minimal.

As regards the Appellants family circumstances, I find the same are unavoidable in view of the fact that at the moment the appellant is serving a lawful sentence and until the appeal is heard, he has to wait. As regards the delay in the hearing of the appeal, this court shall order that the same be fast tracked. In fact once the Appeal has been admitted, parties could dispose the same by way of written submissions.

5. In the result I decline to grant the Applicant bail pending Appeal. He shall remain in custody until the Appeal is heard and determined. The Applicant’s Application dated 1/03/2016 is hereby dismissed. The Appeal be heard on priority basis.

It is so ordered.

Dated and delivered at Machakos this15TH day of MARCH, .2017.

D. K. KEMEI

JUDGE

In the presence of:-

Wambua for Tamata for Appellant…

Machogu for Respondent …

C/A: Muoti…………