[2013] KEHC 737 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CRIMINAL CASE NO.46 OF 2013

JOHN GATUTHA MURIITHI................................................APPELLANT

VERSUS

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

R U L I N G

The application herein is based on a Notice of Motion dated 14th August 2013 and filed on the 16th of August 2013. The appellant seeks orders that he be admitted to bail pending the hearing of the appeal.

The application is based on the grounds;

a) That the appeal herein has extremely overwhelming chances of success.

b) That the offence for which the appellant was convicted is bailable.

That the appellant once admitted to bail pending appeal shall abide with all terms and conditions set.

That it is only mete and just in the circumstances to admit the appellant to bail.

The application is supported by the affidavits of John Gatutha Muriithi. When the application came up for hearing Mr. Njue the learned counsel for Director of Public Prosecutions told the court that he was not opposing the application.

The brief history of this matter is that the applicants was charged with the offence of robbery with violence contrary to Section 296(2) of the penal code. The particulars of the charge sheet dated 23/2/2011 were that on the 19th day of June 2010 at Gitundu village in Nyeri South District within Nyeri County jointly with others not before court, while armed with offensive weapons namely pangas, iron bars and rungus robbed Godfrey Ndungu Wang'ondu cash 32,000/=, two laptops make ACER, four flash discs – LG, one mouse, two safaricom modems, computer, calculator – panasonic, laptop bag, music system woofer, DVD player LG, mobile phones – samsung, bird wrist watch all valued at Kshs.190,500/= and at or immediately before or immediately after such robbery threatened to use personal violence to the said Godfrey Ndungu Wang'ondu.

The learned magistrate heard the case and convicted the appellant applicant on the basis of the evidence of PW11 who said that the appellant applicant went to her home just after the robbery and told her that policemen were chasing him. He was also positively identified by the victim and therefore he was convicted in counts 2 and 3 of the charge.

PW11, a female adult testified that she was in the house preparing for the next days work when she heard screams. The screams started at 9. 20 pm and then later she heard people talking at her gate but after a while the noise stopped someone opened the gate and entered her compound. The said person went to the back of the house and this prompted PW11 to scream but the person outside called her by name and said that he was Gatutha son of Gachomo and was being chased by police. As they were talking the police entered with sniffer dogs and arrested him.

PW2, John Ndungu Kahuhi positively identified the applicant as one of the persons who robbed them on the fateful night.

The appellant was dissatisfied with the decision of the learned magistrate and appealed. His grounds of appeal are as follows:-

The Hon. Trial magistrate erred in law and facts in founding a conviction, failing to find Section 49(1)(f) of the 2010 constitution violated.

The Hon. Trial magistrate erred in law and facts in founding a conviction, failing to find the ingredients of section 137 (d) CPC not fulfilled.

The Honourable trial magistrate erred in law and facts in founding a conviction, failing to find Cap 46(6)(iv) F.S.O violated.

The trial magistrate erred in law and facts in conviction, failing to find the prosecution case was not proved beyond a shield of doubt.

The trial magistrate erred in law and facts in founding a conviction, failing to find that the appellant was not accorded a fair hearing as per the enshrinements of Section 50 (1) and (2) of the 2010 constitution.

The trial magistrate erred in law and facts in convicting in violating of Section 169(1) and 169(2) CPC.

Pending the hearing and determination of appeal, the appellant has asked this court to release him on bail/bond pending appeal. He has stated that the appeal has overwhelming chances of success as the appellant was not arrested at the scene of the robbery and that the eye witness who testified did not mention the appellant. Moreover he argues that the accused person was identified during the parade and yet they had not given the description of the appellant. The appellant argues further that the investigating officer was not able to link him to the offence.

We have carefully considered the evidence on record and the submission of Mr. Wagiita learned advocate for appellant and have taken into account the grounds set out in the notice of motion and the supporting affidavit.

The principles to be applied on an application for bail pending appeal have been set out in the case of Ademba -VS- Republic 1983 KLR 442 as follows:-

Bail pending appeal may only be granted if there are exceptional or unusual circumstances.

The likelihood of success in the appeal is a factor takeinto consideration in granting bail pending appeal.

We have carefully discerned this appeal and having listened to the applicant's counsel on the application for bail pending appeal, the court is convinced that the first principle in granting bail pending appeal has not been satisfied as no exceptional or unusual circumstance has been exhibited by the applicant.

On the second principle, we do find that the appellant has not demonstrated that the appeal has overwhelming chances of success. The evidence of PW1 who identified the appellant at a parade is very crucial and the evidence of PW11 who opened the door to let in the appellant was not seriously shaken during cross-examination. We do not agree with Mr. Wagiita that the appeal has an overwhelming chances of success.

The upshot of the above is that the the application is found not merited and therefore dismissed accordingly.

Dated, signed and delivered at Nyeri this 4th day of November 2013

J. WAKIAGA

JUDGE

A . OMBWAYO

JUDGE

Judgment is read in the presence of the appellant and in the absence of the representative.

J. WAKIAGA

JUDGE

A . OMBWAYO

JUDGE