[2022] KEHC 11370 (KLR)

Katuu v Republic (Criminal Appeal 52 of 2021) [2022] KEHC 11370 (KLR) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11370 (KLR)

Republic of Kenya

In the High Court at Kajiado

Criminal Appeal 52 of 2021

SN Mutuku, J

May 17, 2022

Between

Simon Muia Katuu

Appellant

and

Republic

Respondent

Ruling

1. Simon Muia Katuu (the Applicant) was tried for the offence of robbery with violence in the Magistrate's Court at Loitoktok in Criminal Case No. 62 of 2020. He was found guilty of that offence. He was sentenced to serve life imprisonment. He intends to file an appeal and has come to this court seeking to be released on bail pending hearing and determination of the intended appeal.

2. He has filed a Notice of Motion dated 10th January 2021 anchored on various provisions of the law as shown on the face of that application. He has advanced grounds in support of the application that he is not a flight risk; that he has a fixed abode at Katangi Location within Machakos County where he permanently resides with his family; that he is the breadwinner of his family; that he has a meritorious case with high chances of success; that he has a constitutional right to bail and that he undertakes to abide by any conditions that this court will impose.

Submissions 3. This application was canvassed on 23rd March 2022 through oral submissions. Mr. Mutunga, learned counsel representing the Applicant, submitted that the principles for release on bail pending appeal have been established and these are that the appellant must show existence of exceptional circumstances; the appellant must show, prima facie, that the appeal is likely to succeed and that substantial part of the sentence has been served.

4. Mr. Mutunga submitted that the charge was defective in that it charged the applicant with robbery with violence under section 295 as read with section 296(2) of the Penal Code which is defective because section 295 of the Penal Code provides for the offence of robbery while section 296(2) of the Penal Code is for the offence of robbery with violence. He submitted that there is duplicity and this made it difficult for the applicant to defend himself.

5. Mr. Mutunga submitted further that the appeal is likely to be successful; that there was a problem with the identification process. He urged that this court grants the applicant bond pending the appeal.

6. Mr. Mang’are for the prosecution opposed this application. He submitted that the appeal has no chances of success; that the charge was proved and it is clear which charge the applicant was facing; that the issue of duplicity was not raised in the lower court; that the identification parade was properly carried out and that the applicant did not raise any issue with the identification parade.

7. Mr. Mang’are further argued that the applicant was not on bond in the lower court and only raised issue of bond towards the conclusion of his case and that he is likely to abscond if released on bond.

8. The applicable law on bail pending appeal is Section 357 (1) of the Criminal Procedure Code. This section provides that:“After the entering of an appeal by a person entitled to appeal, the High Court, or the subordinate court which convicted or sentenced that person, may order that he be released on bail with or without sureties, or, if that person is not released on bail, shall at his request order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal.”

9. The applicable principles for grant of bail pending an appeal are stated in the case ofJivraj Shah v. Republic [1986] KLR 605. The Applicant’s counsel cited this case in support of his submissions. The court in that case 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)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.”

10. The applicant through his counsel submitted that the threshold in the above decision has been attained while Mr. Mang’are for the Respondent argued to the contrary. The applicant’s right to bail pending hearing of his case/appeal is backed by the law under Article 49 (1) (h) of the Constitution. But this right is not absolute. Where compelling reasons exist, bail can be denied. A distinction must be made between an accused person whose trial is yet to conclude and an appellant who has been tried and found guilty. The latter does not enjoy the presumption of innocence available for an accused person whose case is yet to be determined.

11. The above distinction was discussed by the court in Chimambhai v Republic 1971 EA 343, where the court made an observation that:“The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”

12. The Court of Appeal in Dominic Karanja v Republic (1986) KLR 612, stated, inter alia, that:(a)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;(b)The previous good character of the applicant and the hardships if any facing his family were not exceptional or unusual factors. Ill health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners;(c)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;

13. I have read the proceedings of the lower court, the Petition of Appeal and the reasoning of the magistrate in her judgment. The appeal is yet to be argued before me to determine if it has high chances of success. My reading and understanding of the submissions made before me reveals no exceptional circumstances in this case and as stated in the Dominic Karanja case above, being a breadwinner for the family is not an exceptional circumstance nor is the assertion that the applicant will not abscond if released on bond.

14. I hold the view that this application cannot succeed for the reason that the applicant has not presented before me any evidence of exceptional circumstances or any other reason why he should be released on bond pending his appeal. Consequently the Notice of Motion dated 10th January 2021 is hereby dismissed.

Orders shall issue accordingly.DATED, SIGNED AND DELIVERED ON 17TH MAY 2022. S. N. MUTUKUJUDGE