[2022] KEHC 14985 (KLR)

Kirwa v Republic (Criminal Appeal E027 of 2021) [2022] KEHC 14985 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14985 (KLR)

Republic of Kenya

In the High Court at Kapsabet

Criminal Appeal E027 of 2021

RN Nyakundi, J

November 9, 2022

Between

Eliud Kirwa

Appellant

and

Republic

Respondent

(Being an appeal against both conviction and sentence from the judgment of Hon. Jacinta Orwa(SPM) in Criminal Case No. 146 of 2019 at Kapsabet dated 27th April, 2022)

Ruling

1. The appellant was charged and tried for the offence of defilement contrary to section 8(3) of the Sexual Offences Act. Upon being convicted of the offence he was sentenced to 14 years imprisonment. Being aggrieved with both conviction and sentence he has filed an appeal challenging entire judgment. The applicant’s application is opposed by the respondent in the grounds of opposition dated July 27, 2022. On consideration of both the affidavit evidence on the grounds of opposition the question I ask myself is whether there is merit in the application seeking to be admitted to bail pending hearing and determination of the appeal.

Decision 2. It is trite that before an appeals court exercises discretion to release an appellant on bail pending appeal his/her application must satisfy the criteria outlined in the case of Krishnan v The People {SCZ 19 of 2011}, {2011} ZMSC 17enumerated the following conditions to be satisfied in an application for bail pending hearing of an appeal:.i.Bail is granted at the discretion of the court.ii.The court must be satisfied that there are exceptional circumstances that are disclosed in the application.iii.The fact that the appellant due to delay in determining the appeal may, have served a substantial part of his sentence by the time his appeal is heard, is one such exceptional circumstance. Each case is considered on its merits, depending on what may be presented as exceptional circumstances.iv.It is important to bear in mind that in an application for bail pending appeal, the court is dealing with a convict, and sufficient reasons must therefore exist before such a convict can be released on bail pending appeal.v.It is not for the court to delve into the merits of each ground. But it suffices that all the grounds are examined, and a conclusion is made that prima facie the prospects of success of the appeal are dim.vi.The fact that the applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant to admit an application to bail; pending appeal.

3. InJivraj 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.'

4. Bail for a convicted person has been often sometimes given as a matter of course. The inclination of many judges favouring a rule of liberality in granting bail has been apparent even when merit is obviously absent. As a result, it has been a false believe created that bail pending appeal there is a constitutional legal right to bail. The view I take in matters of these nature is that judicial discretion must be exercised according to the established principles and rules. Discretion when applied by a court of justice means sound discretion guided by law. The principles laid down in the above cases affect the very essence of whether the applicant has met the criteria to be granted bail pending appeal. In my considered view the character and circumstances surrounding the applicant on the gravity of the offence, the high chances of the appeal succeeding the probability of him serving a substantial custodial sentence before his appeal is heard and determined remains scanty.

5. In the present case the application stands dismissed.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 9TH DAY OF NOVEMBER, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:-Mr Mugun for DPPAppellant