[2017] KEHC 3863 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL APPEAL NO. 13 OF 2015

JAMES MUSYOKA MUEMA.....................APPELLANT/APPLICANT

VERSUS

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

RULING OF THE COURT

1. The Appellant/Applicant has filed a Notice of Motion dated 11th April, 2016 pursuant to the Provision of Article 49 (1)(h) of the Constitution, Section 357 of the Criminal Procedure Code and all other enabling provisions of the law for an order that the Appellant herein James Musyoki Muema be granted bond and/or bail pending the outcome of his Appeal herein.

2. The Application is supported by an affidavit of the Appellant’s Counsel Mr.. Mutinda Kimeu sworn on even date and one the following grounds namely:-

(a) The Applicant has lodged appeal against both conviction and sentence.

(b) The Applicant in his appeal set forth strong and reasonable grounds of appeal which appeal has overwhelming chances of success.

(c) The conviction and subsequent sentence of the Appellant in Machakos Criminal case No. 499 of 2014 were illegal.

(d) It is against the principles and tenets of law jurisprudence and justice for the Appellant to continue serving an illegal sentence whilst his Appeal is pending.

(e) The Appellant will abide by any bond and or bail terms and conditions that this Honourable court may impose.

3. When this matter came up for hearing Mr. Machogu learned Counsel for the Respondent indicated that they had filed a replying affidavit. However none could be traced on the Court file. It was then agreed by both counsels that the Application herein be canvassed by way of oral submissions.

4. Appellant/Applicant’s Submissions:

Mr. Mutinda Kimeu for the Applicant submitted that pursuant to Article 49 of the Constitution, bail is a right unless there are compelling reasons not to be released. Counsel cited several authorities namely SOMO =VS= REPUBLIC [1972] EA, CHARLES OWANGA ALUOCH =VS= DPP [2015] eKLR, JIVRAJI SHAH =VS= REPUBLIC [1986] KLR 605. It was further submitted that the Appellant shall attend court just like when he was before the lower court. Counsel further submitted that the Appeal has high chances of success and is not frivolous. Counsel invited the Court to look at the Memorandum of Appeal which indicates certain witnesses were not called to testify and that the lower court relied on evidence of single witness without warning itself and further the Complainant was not cross- examined by the Appellant.

5. The Respondent’s Submissions:

Counsel for the Respondent opposed the Application on the ground that prima facie the Appellant is a convict and does not enjoy the absolute benefit of presumption of innocence and hence Article 49(1) (h) of the Constitution is not available to him. It was further submitted that if the Appellant is released it might become hard to retake him back to prison in the event the Appeal fails. Counsel for the Respondent submitted that the issue for determination is whether there are exceptional circumstances and further whether the appeal has high chances of success. Finally it was submitted that from the record of the lower court, the Appeal does not have high chances of success.

6. Determination:

I have considered the Appellant’s Application as well as the affidavit in support. I have also considered the oral submissions of learned counsels for the parties. I have also considered the cited authorities. 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 this court can fairly conclude that it is in the interest of justice to grant bail.

The Appellant has claimed that his appeal has high chances of success. The Appellant’s counsel has hinged his submissions on the fact that the lower court had not considered the issue of identification of Appellant at night and further that the Appellant was not given an opportunity to cross-examine the complainant. On the other hand counsel for the Respondent maintains the Prosecution had proved its case in that the Appellant was caught in the act of defilement by the Complainant’s mother and that the defilement was later confirmed by the doctor and therefore the appeal has no chances of success.

In the case of DOMINIC KARANJA =VS= REPUBLIC [1986] KLR 612 the Court of Appeal held that the most important issue 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 and Memorandum of Appeal as well as the proceedings and judgment of the lower Court. The Appellant had been charged with an offence of defilement as well as an alternative charge of committing an indecent act with a child and that the lower court convicted him on the main charge of defilement. Indeed at this stage the appeal is yet to be determined and I have to tread carefully lest I pre-empt the appeal. The Appellant has raised issues to do with identification, age assessment and denial to cross- examine one of the witnesses. The Appellant has not raised any issues to the effect that there exists exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. Again the Appellant having been convicted does not have the presumption of innocence so as to seek refuge in Article 49(1) (h) of the Constitution. Hence as far as bail is concerned it is at the discretion of the Court. My considered view is that the Appeal may be arguable but the likelihood of an overwhelming success is minimal. There is therefore need to fast track the Appeal so that it be heard and disposed of quickly. In fact once the Appeal is admitted, parties could then dispose the same by way of written submissions.

7. 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 11th April, 2016 is hereby dismissed. The Appeal be heard on priority basis.

It is so ordered.

Dated, signed and delivered at MACHAKOS this 3RDday of JULY 2017.

D. K. KEMEI

JUDGE

In the presence of:-

Mutinda Kimeu for Applicant

Machogu for Respondent

C/A: Kituva