[2022] KEHC 14823 (KLR)

Kihima v Republic (Miscellaneous Criminal Application E061 of 2022) [2022] KEHC 14823 (KLR) (3 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14823 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Criminal Application E061 of 2022

RN Nyakundi, J

November 3, 2022

Between

Solomon Kihima

Applicant

and

Republic

Respondent

(Being an appeal against both conviction and sentence from the judgment of Hon. Naomi Wairimu (SPM) in S.O Case No. 83 of 2017 at Eldoret dated 15th June, 2022)

Ruling

1. The applicant approached this court by way of Chamber summons dated 3rd August, 2022 seeking the following orders;1. Thatthis application be certified as urgent;2. Thatthe applicant herein be granted bail pending the hearing of the appeal in High Court Criminal Appeal No.E009 of 2022;3. Thatthis Honourable Court do issue any other order it deems fit in the circumstances.

2. The application is premised on the grounds set out therein and the contents of the supporting affidavit sworn by Rehema K. Khatib, counsel for the applicant.

3. The brief facts underlying the application are that the applicant/appellant was charged with two(2) counts namely Rape contrary to Section 3(l)(a)(b) of the Sexual Offences Act No.3 of 2006 or in the alternative Committing an Indecent act with an adult contrary Section 11 (A) of the Sexual Offences Act No.3 of 2006 and Deliberate transmission of HIV/Aids contrary to Section 26(1) of the Sexual Offences Act No.3 of 2006. The applicant was tried, convicted and sentenced to ten years in prison by the Hon Naomi Wairimu (SPM) sitting at the Chief Magistrate's court at Eldoret in S.O Case No.83 of 2017. The appellant being dissatisfied with the judgment and sentenced has lodged an appeal vide Eldoret Criminal Appeal No. E009 of 2022.

4. The grounds of the application are that the appeal has a high chance of success and the appellant is of advanced age. He is on palliative care because of the sickness he suffers from because of HIV infection and that his health will deteriorate irreparably due to opportunistic infections if he continues to stay in prison custody. Learned counsel for the applicant contended that the appellant/appellant is NOT a flight-risk because he was admitted to pre-trial bond and always attended the trial court whenever required to do so and will therefore continue to attend the superior court without fail if released on bail pending appeal.

Analysis And Determination 5. Article 49(1)(h) of the Constitution provides 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.

6. A different test applies where the matter before the Court is an application for release on bail pending the hearing of the appeal. Section 357(1) of the Criminal Procedure Code provides as follows: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.

7. The principles for granting bond pending appeal are well set out in the case of Jivraj Shah v Republic [1986] eKLR which include;(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.”

8. This position was restated in Mutua vs. R [1988] KLR 497, in which the Court of Appeal stated:It must be remembered that an applicant for bail has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal.”

9. In the case of Chimambhai v Republic1971 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……..”

10. The appellant contended that the circumstances that should be considered in granting bail is that his condition has deteriorated as he is suffering from HIV. What courts consider as exceptional circumstances were dealt with in R vs. Kanji [1946] 22 KLR, where De Lestang, Ag.J (as he then was) held that:The appellant’s appeal is not likely to be heard before the end of March or beginning of April by which time I am informed he shall have served one fourth to one-third of his sentence. The mere fact of delay in hearing an appeal is not of itself an exceptional circumstance, but it may become an exceptional circumstance when coupled with other factors. The good character of the appellant may, for example, together with the delay in hearing the appeal constitute an exceptional circumstance.”

11. It is my view that the appellant’s health is not an exceptional circumstance. There are inmates who have similar if not more debilitating illnesses and the prisons system provides healthcare for all inmates. In Peter Hinga Ngotho v Republic [2015] eKLR it was held that the fact that the Applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant a decision to admit an Applicant to bail pending appeal. The Appellant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal.

12. However, the most important issue for consideration is whether the appeal has overwhelming chances of success. In Dominic Karanja v Republic (1986) KLR 612, the Court of Appeal stated in alia:(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;

13. Upon perusing the judgment of the trial court and the proceedings, it is my view that the appellant has an arguable appeal with a likelihood of success. However, I shall not delve into the merits of the appeal at this juncture.

14. I hereby allow the application for bail pending appeal dated 3rd August 2022 in the following terms;a.The applicant be released on a bond of Kshs. 200,000/= with a surety of a similar amount.b.The appeal shall be filed within 45 days from today’s date.It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 3RDDAY OF NOVEMBER, 2022. ............................R. NYAKUNDIJUDGECoram: Hon. Justice R. NyakundiMr Mugun for the stateKassim & Nzula Adv for appellant