[2022] KEHC 519 (KLR)

Koros v Republic (Criminal Appeal E002 of 2022) [2022] KEHC 519 (KLR) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 519 (KLR)

Republic of Kenya

In the High Court at Kericho

Criminal Appeal E002 of 2022

AN Ongeri, J

May 6, 2022

Between

Mercy Chepkoech Koros

Applicant

and

Republic

Respondent

Ruling

1. The Application coming for consideration in this ruling is the one dated 10/3/2022 seeking bail pending appeal.

2. The Applicant was charged with stealing by servant Contrary to Section 281 of the Penal Code and she was convicted and sentenced to two (2) years imprisonment.

3. The Applicant has filed an appeal against the conviction and sentence and she is now seeking to be admitted to bail pending appeal on condition that she has minor children whom she left in the care of her elderly parents.

4. The parties filed written submissions which I have duly considered.

5. The Applicant submitted that she had abided with the bond terms given by the trial court and had not breached the bond terms until her conviction and subsequent sentencing.

6. The Applicant submitted that she was willing and ready to abide by all the terms that the court would impose.

7. The Applicant submitted that there were exceptional circumstances which warranted grant of bail pending appeal, she has minor children and one of them was sickly whom she left in the care of her elderly parents.

8. The Applicant submitted that the nature of the offence for which she was convicted and was serving a custodial sentence did not involve personal violence.

9. The Applicant submitted that challenging the judgement of the trial court delivered on 27/1/2022 via an appeal restores the presumption of innocence until the appeal is determined.

10. The Respondent was opposed to the application for bail pending appeal and cited the case of Somo v Republic[1972] EA 476 which sets out the principles the court considers in granting bond pending appeal.

11. The Respondent submitted that the applicant had not demonstrated any exceptional or unusual circumstances for the court to consider and the fact that the offence did not involve personal violence or that the applicant had two minor children did not amount to an exceptional or unusual circumstance. Further to this the applicant did not have evidence on record to wit birth certificates to prove that she had minor children.

12. The Respondent submitted that the appeal did not have any overwhelming chance of success, that from an analysis of the judgment of the trial court there was overwhelming evidence against the applicant and the applicant’s appeal had no chance of success.

13. The Respondent submitted that the applicant was a convicted felon serving sentence and the presumption of innocence does not apply to her. Further, that the constitutional guarantee espoused in article 50 (2) (a) did not protect the applicant.

14. The Respondent submitted that the instant application is misconceived, lacks merit and should be dismissed.

15. The sole issue for determination in this Application is as follows:-i.Whether the Applicant is entitled to bail pending appeal

16. Section 357 (1) of the Criminal Procedure Codeprovides for admission to bail pending appeal, it states that:“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.”

17. In the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR, it was held that; “The right to bail is provided under Article 49(1) of the Constitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial. After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored.”

18. With regards to the submission on the presumption of innocence in the case of Chimambhai v Republic [1971] EA 343, the court observed as follows; “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…”

19. I find that there are exceptional circumstances in this case to warrant this Court to grant the Applicant bail pending appeal.

20. The Applicant is a mother of two minor children who need her care and protection.

21. The Applicant was on bond during the hearing of the case and did not abscond.

22. In light of the foregoing, I find merit in the appellant’s application dated 10/3/2022. The same is allowed in the following terms:i.That I admit the Applicant on a bond of Kshs. 200,000/= with one surety similar amount.ii.That the Applicant to attend court as and when scheduled without fail until the final determination of the appeal or until further orders.iii.That in default of any of the terms, the same will be cancelled and her surety called to account.iv.The applicant is also directed to ensure that she sets the appeal down for hearing on priority basis.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 6TH DAY OF MAY, 2022A. N. ONGERIJUDGE