[2022] KEHC 12910 (KLR)

Kipkemoi v Republic (Criminal Miscellaneous Application E083 of 2021) [2022] KEHC 12910 (KLR) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12910 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Miscellaneous Application E083 of 2021

A. Ong’injo, J

July 21, 2022

Between

Sostem Kipkemoi

Applicant

and

Republic

Respondent

Ruling

1. Applicant herein seeks bond pending appeal pursuant to section 357(1) of the Criminal Procedure Code for reasons that he has an arguable appeal in Criminal Appeal Number E075 of 2021. He also argued in the supporting affidavit that he has a disability and the prison infrastructure doesn’t favor his condition. He relies on Criminal Appeal 23 of 2015 Said Safari vs Republic where appellant was granted bond of Ksh100000 with a surety of a similar amount. Applicant further argued that it was dangerous for him to remain in custody due toCovid 19 pandemic as he had underlying conditions and that prison due to overcrowding was not an adequate place for him.

2. The background facts are that applicant was convicted and sentenced in Sexual Offences number 64 of 2020 to serve 10 years’ prison sentence for the offence of contrary to section 3(1) (a)(c) as read with (3) of the Sexual Offences Act of 2006 on August 5, 2021.

3. The application is unopposed.

Analysis And Determination 4. The principles for granting bond pending appeal are well set out in the case of Jivraj Shah v Republic [1986] eKLR which include;a)The existence of exceptional or unusual circumstances upon which a court of appeal can fairly conclude that it is in the interest of justice to grant bail.b)Whether the appeal has overwhelming chances of success.c)Whether there is a likelihood of the appellant having served a substantial part of the sentence by the time of appeal is heard and determined.

Does the appeal have overwhelming chances of success? 5. The bail and bond policy guidelines page 27 paragraph 4. 30 “provides that the burden is on the convicted person to demonstrate that there is an overwhelming chance of success. ’’ In this particular instance it would prejudicial to the Appellant if the court gave an opinion on this as the criminal appeal lodged by the applicant is currently being heard in this court.Is there a possibility of delay in hearing and determination of the appeal?

6. The applicant herein was sentenced and convicted to serve 10 years in jail for the offence of rape contrary to section 3(1) (a)(c) as read with (3) of the Sexual Offences Act of 2006. The applicant has appealed both conviction and sentence in Criminal Appeal 075 of 2021. As in general court operations the appeal will be canvassed vide written submissions and this will not take a lot of time. There is no possibility in delay and determination of the appealThe existence of exceptional or unusual circumstances upon which a court of appeal can fairly conclude that it is in the interest of justice to grant bail.

7. Applicant avers that he has a disability and underlying conditions that make him susceptible to Covid 19. However, Covid 19 is not threatening as there has since been numerous vaccines that are available. Applicant further avers he is disabled and prison facilities are inadequate. However, in my considered opinion disability is not an exceptional circumstance. This court hereby orders that the prison provides the appellant with a wheel chair for his movement in the facility.

8. The upshot of the matter is that the application is unmerited and is dismissed accordingly.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 21ST OF JULY 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:-Appellant in person - present in personMr. Ngiri for RespondentMr. Ogwel - Court AssistantHON. LADY JUSTICE A. ONG’INJOJUDGE