[2017] KEHC 9720 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NUMBER 109 of 2017

KENNETH AJODE OMOLO aliasPATRICK OTIENO ONYANGO.........APPLICANT

VERSUS

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

(An application for bail pending appeal under Sections 356, 357 and 362 of the Criminal Procedure Code and any other enabling provisions of the Constitution & Laws of Kenya, Rule 3 Part 1 of the Judicature Act and Rule 3(1) of the High Court(practice and procedure Rules).

RULING

Kenneth Ajode Omolo alias Patrick Otieno Onyango filed the present application by way of a Chamber Summons by which he prayed that pending the hearing and determination of the appeal he be admitted to bail, that pending the determination of the appeal this court should order a stay of the orders issued on 4th and 14th August, 2017 in Milimani Criminal Case 1271 of 2008 by which his cash bail was forfeited to the State and finally that the court be pleased to issue such orders as it deems just and expedient to grant.

The grounds upon which the application is premised are that the Appellant risked serving a substantial part of his sentence which would occasion him to suffer substantially, that the appeal had a highly arguable and meritorious chance of success and that his health was deteriorating.

The application was supported by an affidavit sworn by Daniel Bosire who was the Applicant’s advocate on record. He deponed that the Applicant was sentenced to two years imprisonment without the option of a fine and that he was dissatisfied with both the conviction and sentence and wished to appeal against both. That he believed that the appeal was highly arguable and has a high chance of success. In the circumstances he submitted that the application for bail pending appeal was meritorious. He swore that in light of the high chances of success of the appeal, he was apprehensive that the time spent in custody pending the hearing of the appeal would render it nugatory as he would serve a substantial part of the sentence. That the Applicant had informed him that he was the sole bread winner of his family which is currently suffering due to his continued incarceration. Further, that the Applicant was suffering from high blood pressure that was accentuated by the prison conditions. He concluded by urging this court to reinstate the cash bail that was forfeited by the trial court without justification.

The Respondent filed grounds of opposition to the application. They were that the appeal had no chance of success and would not be rendered nugatory if bail is not granted and that there were no exceptional circumstances that would warrant the grant of the orders sought.

DETERMINATION

The application was canvassed before me on 16th October 2017 with Mr. Kangahi representing the Applicant while Ms. Sigei acted for the Respondent. The parties reiterated the grounds on which the application is premised and opposed respectively.

An avalanche of case law exist that sets out the principles that should be considered in an application for bail pending appeal. Trevelyan J. in Somo v Republic[1972] EA 476, at page 480, delivered himself as follows:

“There is little, if any, point in granting the application if the appeal is not thought to have an overwhelming chance of being successful, at least to the extent that the sentence will be interfered with so that the applicant will be granted his liberty by the appeal court. I have used the word “overwhelming” deliberately and for what I believe to be good reason. It seems to me that when these applications are considered it must never be forgotten that the presumption is that when the applicant was convicted, he was properly convicted. That is why, where he is undergoing a custodial sentence, he must demonstrate, if he wishes to anticipate the result of his appeal and secure his liberty forthwith, that there are exceptional and unusual circumstances in the case. That is why, when he relies on the ground that his appeal will prove successful, he must show that there is an overwhelming probability that it will succeed…

What of other grounds? I do not doubt that such matters as the applicant’s good character, delay in the hearing of his appeal and hardship are for the weighing in the balance in favour of the grant of the application. But they can only avail the applicant if, on the facts presented, unusual or exceptional circumstances are shown to exist.”

The Applicant’s case is primarily that the appeal has a high probability of success which would be rendered nugatory by the Applicant being submitted to serve a substantial part of the sentence. Further, that the Appellant was suffering from high blood pressure that was exacerbated by the prison conditions. Ms. Sigei is of the contrary view submitting that the application did not have a high chance of success.

I have perused the record of appeal as well as the petition of appeal. It is my considered view that although the appeal is arguable, it does not possess an overwhelming probability of success. My evaluation of the entire evidence drives me to conclude that the Appellant was culpable. An issue was raised that all the goods that he purchased were duly paid for and that therefore he could not have been a fake bank card to transact. It is factual to the extent that the goods were paid for. However, the question in issue is not about the failure to pay for the goods but that the Appellant was using a card that did not belong to him, specifically a card made without authority for purpose of executing fraud; and that, he succeeded very well. The issue of who led to the arrest of the Appellant, in my view does not oust the overwhelming fact that the Appellant committed the offence. The issues that were raised regarding the bank card originating from a South African bank will adequately be canvassed in the appeal. Otherwise for other offences, I am persuaded, prima facie, that the appeal is unlikely to succeed. The court is also cognizant that at this early stage it does not have authority to take such actions as would preempt the findings of the judge who will hear the appeal. I thus desist from entirely evaluating the evidence on record.

The court has considered the fact that the Appellant also contests the sentence of two years imprisonment as being harsh and excessive. When considering whether the sentence in question would be overturned by an appellate court, several factors play in some of which were considered in the case of Ogalo s/o Owuora v Reginam [1954] 24 E.A.C.A 70 where it was held that:

“The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if members of the court had been trying the Appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said inJames v. R.,(1950) 18 E.A.C.A 147,“it is evident that the Judge has acted upon some wrong principle or overlooked some material factor”. To this we would also add a third criterion, namely, that the sentence is manifestly excessive in the circumstances of the case:

[…]

We appreciate, of course, that a trial judge is not necessarily bound by […] precedents but we think that they afford some sort of yardstick to an Appellate Court which has to consider whether a sentence is or is not manifestly excessive in all circumstances of the case.”

Counts I and II in which he was charged with making a document without authority contrary to Section 357(a) of the Penal Code have a mandated maximum sentence of 7 years imprisonment and therefore the sentence passed cannot be deemed as manifestly excessive. Counts IV, V, VI, VIII, IX and X all carry a maximum sentence of three years imprisonment each. Whereas a fine may be imposed as an alternative to a custodial sentence, the gravity of offences in Counts I and II mitigate for a custodial sentence. After all, the sentences were ordered to run concurrently in which case the Appellant will only serve two years imprisonment.

I would also wish to comment on the fact that the Appellant is unlikely to have served a substantial part of the sentence by the time the appeal is heard and determined. The diary for the registry shows that this appeal may be dispensed with by January or February, 2018. Given the fact that the appeal is unlikely to succeed, I am not persuaded that on ground that the sentence is short, the application should succeed.

Finally, the court was asked to reinstate the Appellant’s cash bail that was ordered forfeited to the State by the trial court. I have keenly read the ruling of he learned trial magistrate, Hon. Felix Kombo dated 14th August, 2017. He in detail enunciated the grounds on which he could not reinstate the cash bail. This court is of a similar view that the Appellant deliberately absconded court and he must be prepared to shoulder the consequences of disobeying court attendance. I will not add more than to say that I entirely concur with the holding of the said learned trial magistrate. The Appellant will have to contend with the fact that he cannot get back his cash bail.

In the result, the application herein is dismissed.

DATED AND DELIVERED THIS 2nd DAY OF NOVEMBER, 2017.

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Appellant present in person.

2. Miss Sigei for the Respondent.