[2023] KEHC 25053 (KLR)

JGN v Republic (Criminal Appeal E023 of 2023) [2023] KEHC 25053 (KLR) (6 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25053 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Appeal E023 of 2023

RM Mwongo, J

November 6, 2023

Between

JGN

Appellant

and

Republic

Respondent

Ruling

1. The appellant/applicant was convicted on May 9, 2023 and subsequently sentenced on May 23, 2023 to ten years’ imprisonment for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act.

2. Dissatisfied, with the lower court’s determination, he filed an appeal on 7th June, 2023.

3. Through a notice of motion dated 23rd June, 2023 He seeks to be granted bail/bond pending the hearing and determination of the appeal he filed. The application is based on the following grounds:i.That the Appellant/Applicant was convicted on 9th May 2023 and he was subsequently sentenced on 23rd May 2023 to ten years imprisonment for the offence of Defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act.ii.That the Appellant/Applicant was aggrieved by the sentence and the conviction and has filed this appeal.iii.That the Appellant/Applicant has an arguable appeal with a high chance of success due to the following reasons;a.The Learned Magistrate erred in law and fact by failing to consider that the complainant was medically examined on 11th September 2022 after she was found in Meru Town on 9th September 2022 and later she was found to be pregnant on 9th November, 2022 during her second examination.b.The Learned Magistrate erred in law and fact failing to consider that no DNA was done to prove the paternity of the child.iv.That the Appellant/Applicant has been sentenced to serve ten years imprisonment and there is high likelihood that he will serve one-fourth to one- third of his sentence before the appeal is heard and determined.

4. The applicant filed a supporting affidavit dated 23rd June, 2023 and a Supplementary Affidavit dated 27th July, 2023 emphasizing the grounds of his notice of motion.

5. Oral submissions were heard on 27th July 2023. The applicant’s counsel submitted that the appellant be admitted to a bond of kshs 300,000 and one surety. The appeal has high chances of success. They rely on the ground that no DNA was conducted to prove that the child allegedly conceived by the complainant was as a result of the defilement.

6. The prosecution submitted that it was true that no DNA was availed. If it is proved otherwise the applicant will suffer prejudice.

7. The only issue is whether in the circumstances of this case the appellant should be granted bail/bond pending the hearing and determination of the Appeal.

8. The right to bail or bond underarticle 49(1)(h) of the Constitution, is applicable to arrested and accused persons. The provision is that:“An accused person has the right …(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.”

9. The right of a convict to bail is construed in a rather different light. In the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR it was held that:“The right to bail is provided under article 49(1) of the Constitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial. After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored. In the case of Jiv Raji Shah vs. R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:“(1)The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.(2)If it appears prima face from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be argued and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists.(3)The main criteria is that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued.”

Whether the Appeal has a high chance of success 10. The applicant’s counsel submits that the appeal has high chances of success. They rely on the ground that no DNA was conducted to prove that the child allegedly conceived by the complainant was as a result of the defilement.

11. The prosecution submitted that it was true that no DNA was availed, and that if it was proved otherwise, the applicant will suffer prejudice.

12. The applicant filed the proceedings of the lower court. From them, it is clear that no DNA was conducted to prove that the child allegedly conceived by the complainant was as a result of the defilement. The complainant also stated that the accused was the only one she had had sex with.

13. In the case of WLN v Republic [2021] eKLR Gikonyo J held:“DNA testing provides a scientific proof of biological parenthood of a person. In cases of defilement, the fact that the victim became pregnant as a result of sexual intercourse with a child is proof of penetration and identity of the culprit. Except, it is a different thing altogether if the pregnancy was conceived through other modern fertilization and conception methods. Of great evidentiary importance, however, is that in criminal cases, defilement or rape, DNA result that proves a person to be the biological father of a child conceived through defilement is proof of penetration by the person so found to be the biological father of the child. I wish, however, to disabuse the appellant of the notion that, because he was excluded by DNA results, he did not defile the victim. He may have caused penetration of the child at other time which did not result into a pregnancy and so not covered by the DNA result. Nonetheless, such must be proved through other evidence as required.”

Serving more than one-fourth to one- third of the sentence 14. The appellant/applicant is apprehensive that he may be doomed to serve a substantial period of one-fourth to one-third his ten-year sentence before his appeal is heard and determined. He was sentenced on 23rd May, 2023. He has already served six months in prison. There is likelihood that he will have served one-fourth to one-third of his sentence before the appeal is heard and determined.

15. Further, it is a fact that under section 46 of the Prisons Act, an accused is lawfully credited with one-third of his sentence at the time he is incarcerated. That means that he 3 years and 4 months will be deducted from his sentence leaving only 6 years and 8 months. His apprehension is that he will serve most of his sentence before the appeal is heard.

16. Taking all circumstances into account, I think the appellant is entitled to be granted reasonable bail/bond terms pending the hearing and determination of the appeal.

17. Accordingly, the applicant shall be granted reasonable bail terms details of which he shall furnish the court at the next mention, or as agreed in court.

18. Orders accordingly.

DATED AT KERUGOYA THIS 6TH DAY OF NOVEMBER, 2023. ................R. MWONGOJUIDGEDelivered in the presence of:1. Appellant in person2. Kiragu for Applicant3. Mamba for State4. Court Assistant, Murage