[2017] KEHC 1271 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CRIMINAL APPEAL NO. 78 OF 2017

L K M..................................................................................................APPLICANT

VERSUS

REPUBLIC....................................................................................RESPONDENT

RULING

The Applicant was charged at Kangundo Senior Principal Magistrate’s Court in Criminal Case No.16 of 2015 with two counts of benefiting from Child Prostitution contrary to Section 15(a) of the Sexual Offences Act No.3 of 2006 Laws of Kenya. She was convicted on one count on 23rd May 2017 and sentenced to serve 5 years imprisonment.

The Applicant subsequently filed an appeal against the judgment of the trial Court by way of a Petition of Appeal filed in this Court on 2nd June 2017. She also filed an application herein by way of a Chamber Summons dated 5th June 2017, which was supported by an affidavit the Applicant swore on the same date. The Applicant in the said application is seeking orders that she be released on bail pending the hearing and determination of this appeal, upon such terms and conditions as the court may deem just and expedient to impose.

The main grounds for the application are that the Applicant’s appeal has an overwhelming chance of success. Further, that the Appellant is a mother of 5 young children that she needs to take care of and ensure that their needs are met. She provided the names and dates of birth of the children who range from 13 to 11/2 years. The Appellant averred that her last born child, G N aged 1 year and 5 monthS is currently with her at Machakos GK Women’s Prison as she needs to be near her mother due to her tender age, and is in danger of contracting illnesses due to the unsanitary conditions at the prison.

The Applicant is apprehensive that she will serve a substantial part of her sentence by the time this appeal is heard and determined, thus rendering the appeal nugatory. She deponed that it was only fair that she be granted bail since it was her constitutional right. The Appellant undertook to avail herself to court whenever required to do so and comply with the conditions of court. She stated in this regard that she resided at [particulars withheld] village in Kikambuani Sub location, Kanzalu location of Machakos County with her husband and their five children, and as such she was readily available.

The Applicant’s learned counsel, O.N. Makau & Mulei Advocates, filed written submissions dated 15th September 2017, wherein they relied on the principles of law for bail pending appeal as set out in Jivraj Shah vs Republic(1986) eKLR.

It was submitted in this regard that exceptional or unusual circumstances exist and that it is in the interest of justice to grant the Applicant bail as she has five children, and the youngest of them aged 1year and 5months was with her at the prison and was therefore in danger of contracting illnesses as deponed in the Applicant’s affidavit. Further, that the Applicant’s situation thus comprises exceptional circumstances which would merit the grant of bail pending appeal as held in Susan Joyce Omwakwe –Vs- Republic,(2014) eKLR.

On the ground that her appeal is likely to be successful, the Applicant relied on the grounds of appeal as laid out in the petition of appeal she filed in Court, and cited various court decisions in support of the said grounds. Finally, it was submitted by the Applicant that having been imprisoned for five years of which she had already served 4 months, and bearing in mind how the courts diary was busy, there is a possibility that by the time the appeal will be heard the Applicant might have served her sentence.

The Prosecution relied on a replying affidavit sworn on 7th August 2017 by Ms Mogoi Lillian, a Prosecution Counsel in the Office of the Director of Public Prosecution, which was filed in Court on 9th August 2017. They submitted that they would not file any submissions.

Ms. Mogoi deponed that the Applicant was charged, tried, convicted and subsequently sentenced to five years imprisonment at the Senior Principal Magistrate court at Kangundo Law Courts. Further, that the Prosecution opposes the application for bail because the Applicant had not demonstrated at all that her appeal has high chances of success.

Ms. Mogoi averred that the assertion that the Applicant would not abscond if released even if supported by sureties was not sufficient ground for releasing her on bail pending appeal. That the Applicant instead ought to set down her appeal for hearing at the earliest date possible, and in the event the same is successful no prejudice will be suffered.

I have considered the pleadings and submissions by the Applicant and Prosecution. The provision of law that applies to bond/bail pending appeal is section 357 of the Criminal Procedure Code which provides as follows:

“(1) 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:

Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.

(2) If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.”

In Mutua vs R, [1988] KLR 497 the Court of Appeal stated thus as regards the exercise of the Court’s discretion in an application for bond/bail pending appeal:

“ 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. It is not wise or to set the applicant at liberty either from the point of view of his welfare or of the state unless there is a real reason why the court should do so.”

A different test from that applied in bail pending trial is therefore applied in bail pending appeal. When considering an application for bail pending appeal, the court has discretion in the matter which must be exercised judicially taking into consideration various factors as follows:

a) Whether the appeal has overwhelming chances of success. See Ademba vs Republic (1983) KLR 442, Somo vs R [1972] E.A 476, Mutua vs R [1988] KLR 497in this regard;

b) There are exceptional or unusual circumstances to warrant the court's exercise of its discretion. In this regard see Raghbir Singh Lamba vs R [1958] E.A 337;Jivraj Shah vs Republic(1986) eKLR;Somo vs R(supra.); Mutua vs R (supra.)

c) There is a high probability of the sentence being served before the appeal is heard as held in Chimabhai vs R, [1971] E.A 343.

In the instant application, the Applicant has urged that her children are in need of care, and there are thus exceptional circumstances for her release on bail. She did not bring any evidence of the circumstances of the said children, or that the children are in any difficult circumstances or ailing, for this Court to gauge the alleged needs and exceptional circumstances. The decision in Susan Joyce Omwakwe –Vs- Republic,(2014) eKLRis distinguishable in this regard, as medical evidence was adduced therein to show that the Applicant was ailing and needed specialized treatment, and the Applicant had also been sentenced to fifteen months imprisonment.

The Applicant has also argued that her appeal has overwhelming chances of success. Her grounds of appeal however can only be considered after being subjected to arguments during the full hearing of the appeal, and cannot be established at this stage. On her fear of serving her sentence before the appeal is heard and determined, I am of the view that the Appellant should focus on having the appeal heard at the earliest possible moment to avoid any prejudice in this regard. It is also notable in this regard that the Appellant has only served 4 months of a five-year prison sentence.

I am therefore satisfied that this is not a proper case in which to exercise this court's discretion in favour of the Applicant. I therefore decline to grant the orders sought in the Applicant’s Chamber Summons dated 5th June 2017.

There shall be no order as to costs.

It is so ordered.

DATED AT MACHAKOS THIS 31st OCTOBER 2017.

P. NYAMWEYA

JUDGE