[2024] KEHC 3994 (KLR)

Kibet v Republic (Criminal Appeal E006 of 2023) [2024] KEHC 3994 (KLR) (9 April 2024) (Ruling)

Neutral citation: [2024] KEHC 3994 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal E006 of 2023

DR Kavedza, J

April 9, 2024

Between

Frankline Kibet

Appellant

and

Republic

Respondent

(Being an application for bail pending appeal from the decision of the Court Martial sitting at TAEW Moi Air Base Court Martial no. 11 of 2022 Republic vs Frankline Kibet)

Ruling

1. The appellant was charged and after a full trial convicted for four counts of offences under the Kenya Defence Forces Act: Committing a civil offence contrary to section 133 (1)(b) of the Kenya Defence Forces Act in counts I, II and III. In count IV, Retaining public property contrary to section 87(1)(b) as read together with section 87(2) of the Kenya Defence Forces Act. In the alternative, he was charged with conduct to the prejudice of good order and discipline contrary to section 121 of the Kenya Defence Forces Act. He was found guilty and convicted on the four counts charged. He was sentenced to serve a cumulative of 12 years imprisonment. Being dissatisfied with the decision, he filed a petition of appeal dated 12th February 2024.

2. Simultaneously, he filed a chamber summons of similar date seeking his release on reasonable bail and/or bond pending the hearing and determination of his appeal. The application is premised on the grounds that the appeal has overwhelming chances of success. The appellant is a law-abiding citizen, and prior to his conviction, served in the Kenya Defence Forces. In addition, that he has already served 2 years in prison having been arrested in February 2022 and spent the entirety of his trail in remand custody. Further that he will abide by all the conditions that the court may impose. He is apprehensive that unless granted bail he will have served a substantial term of the sentence and will be prejudiced when the court ultimately upholds his appeal.

3. In addition, he filed a supplementary affidavit dated 18th March 2024. It was contended that since his incarceration, he has been experiencing breathing problems and stomach pains. He visited Industrial Area Prison Health Centre where he was diagnosed with asthma and H-Pylori, a condition that requires modification of his diet, which is not available at the prison facility. His health continues to deteriorate and has been relocated to the sick bay of the facility. He urged the court to grant the orders sought to seek specialised medical attention.

4. I have considered the application the written submissions and the applicable law. The issue for consideration is whether the appellant has met the threshold for the grant of bail pending appeal.

5. The provision of law that applies to bond/bail pending appeal is section 357 of the Criminal Procedure Code (Cap 75) Laws of Kenya which provides as follows:(2)If it appears prima facie 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 are 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."

6. The principles for granting bond pending an appeal were reiterated in the case of Jivraj Shah v Republic [1986] KLR 605 which laid down the principles 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. The principle of granting In the case of Chimambhai v Republic 1971 EA 343 J. Harris made another observation in such an application when he said:(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."

7. In the case of Chimambhai v Republic 1971 EA 343 J. Harris made another observation in such an application when he said:“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........”

8. Under Article 49 of the Constitution of Kenya an accused person who is facing a criminal charge has a right to bond because he is presumed to be innocent till proved guilty, unlike a case where one is already convicted. In the above cases, the courts also held that anticipated delay in the hearing of the appeal together with other factors may be grounds for grant of bail pending appeal.

9. I have carefully examined the grounds of appeal raised by the applicant. The applicant states that the appeal herein has a high chance of success and one need only look at the judgment and petition of appeal to see the trial court relied on unreliable and inconsistent evidence and there were glaring inconsistencies which is a hallmark of a successful appeal.

10. The rationale for considering the chances of success of the appeal was given in Somo v R [1972] EA 472 at page 480 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 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 Riginaydemonstrate, if he wishes to anticipate the result of his appeal and secure his liberty forthwith, that there are exceptional or 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 overwhelming probability that it will succeed."

11. In this case, I have considered the ten grounds of appeal raised in the petition of appeal. However, I am not satisfied that the said grounds disclose the existence of an appeal with overwhelming chances of success. Whereas the appellant may succeed in arguing the said grounds at the hearing of the appeal, I am not satisfied that the chances of the appeal succeeding are overwhelming. The grounds are the usual grounds and no ground stands out as one that is very likely to succeed even before the same is argued based on the state of the record.

12. As regards the exceptional circumstances, it is argued that the appellant's appeal is likely to be determined after the sentence is served. The appellant was sentenced to a cumulative term of twelve years imprisonment. The appellant's apprehension, as I understood it is that the appeal will take long to be heard. However, it is my view that it is possible to have this appeal heard and determined expeditiously and without delay. The record of appeal is ready, and the directions on disposal of the appeal will be issued forthwith. The appeal will therefore be concluded expeditiously.

13. The appellant also claimed to be suffering from asthma and H-Pylori. It was argued that the latter condition requires a specialised diet which is not available in prison. However, this is not an exceptional circumstance, as the Prison facility has not been shown to be ill-equipped to deal with his condition. I also take judicial notice that prisoners who suffer from a similar condition as the appellant do exist in prisons within Kenya. I need not state that in a few bad cases, the prison authorities do transfer them to hospitals for special treatment whenever necessary. That being the case, he can continue receiving treatment in the same facility or any other as is within the prison requirements.

14. The upshot of the above analysis is that the applicant has not demonstrated the existence of exceptional or unusual circumstances to warrant the grant of bail pending appeal. The application for bail pending appeal is dismissed.It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 9TH DAY OF APRIL 2024______________D. KAVEDZAJUDGEIn the presence of:Oscar Otieno for the ApplicantMr. Mongare for the RespondentNelson Court Assistant