[2017] KEHC 967 (KLR)

THE REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 103 0F 2017

LEONARD MUSEHENDA OCHOKA............APPELLANT/1ST APPLICANT

SARAH ODIMA.............................................APPELLANT/2ND APPLICANT

VERSUS

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

RULING

Background

The Applicants, Leonard Muhesenga Ochoka and Sarah Akinyi Odima were jointly charged and convicted on three counts of obtaining money by false pretenses contrary to Section 313 of the Penal Code. They were each sentenced to pay a fine of Ksh 100,000/ in each count in default serve one year imprisonment respectively.

The Applicants made an application before this Court on the 3rd of August, 2017 for grant bail pending the hearing and determination of the appeal. It was made under Section 357 of the Criminal Procedure Code and other enabling provisions of law.

Mr. Otieno for both Appellants made submissions that were premised on the grounds in support of the application. They were that;

1. The children of the 1st Applicant were out of school due to lack of fees; one of the children was supposed to sit for his KCSE examinations but might not if the 1st Applicant is not released to find money to cater for the school and examination fees.

2. That the Applicants had bail from the lower court and they never absconded.

3. That the companies involved in the various transactions were legitimate.

4. That there is evidence that both Appellants sent money to two individuals in Dubai who were supposed to deal with the logistics of travel for the three complainants.

5. That the arrests made by the Police only happened due to the delays occasioned by the firm in Dubai; the learned counsel stated that one of the three complainants had already travelled to Dubai.

6. That the firm in Dubai issued an apology which was produced and admitted by the court.

7. Lastly, that the appeal had high chances of success and further incarceration would only subject the Appellants to undue prejudice.

The application is supported by the affidavits of Samuel Brian Otieno, learned counsel for the Appellants sworn the 4th of August, 2017 and that of Chrispine Akamala Mukabwa, the wife of the 1st Applicant sworn the 7th of September, 2017. Counsel emphasized that the case had a great chance of success and a further incarceration of the Appellants in custody would prejudice them in the event that the appeals succeeded. The wife of the 1st Applicant deposed that she was a house wife and the 1st Applicant was the breadwinner of the family. Their children needed fees to attend school and one of them was supposed to sit the Kenya Certificate of Secondary Education exams and needed funds to register for the exams.

The Respondent, through learned State Counsel Miss Akunja opposed the application. She submitted that the case had no chance of success. She submitted that there was no proof that one of the Complainants had travelled to Dubai. She added that the right to bail pending appeal was not absolute. Furthermore, the Applicants will not have served a substantial part of their sentence by the time the appeals are heard and determined. She urged the court to dismiss the application.

Determination

The law is now settled on principles guiding the court in an application for bail pending appeal. As rightly submitted by counsel for the Respondent bail pending appeal is not a matter of right and is clearly distinguishable from the right to bail of an arrested person envisaged under Article 49(1)(h) of the Constitution. This is simply explained by the fact that in bail pending appeal, the Applicant has already been convicted by a competent court and is therefore lawfully serving a sentence and unless the conviction and sentence are set aside, he must duly serve the sentence.

In the case of Dominic Karanja vs. Republic (1986) KLR 612 the Court of Appeal held that;

1. 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.

2. The previous good character of the Applicant and the hardships, if any, facing his family were not exceptional or unusual factors…

3. A solemn assertion by an Applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal.

On the success of the appeal, the Appellants worked to assist Kenyans get employment in Dubai. The allegations that led to their conviction were that the three complainants sent money to them but they failed to secure their flights and jobs. The charges were premised on them having lied to have been working for Afro Gulf Limited and as the directors thereof. The 1st Appellant however transacted the three complainant’s requests using his personal account and not the one belonging to Afro Gulf Limited.

The owner of Afro Gulf Limited testified but noted that the two were just brokers on commission for the company and not full employees. He also added that he let them use his office occasionally when interviewing job seekers. Needless to say is that since the Appellants were brokers, any transactions would have had to go through the Company first then their commission paid afterwards. The unfortunate bit is that although the converse was the case, the received monies were not expended for the purpose for which they were paid. For this reason, it is my view that they obtained money with a view to defrauding the complainants who after all did not travel to Dubai. Their respective appeals are therefore unlikely to succeed.

There is also the assertion by the Applicants that they had gone to the CID to report that they had been duped by their counter parts in Dubai but there was no proof of the same. The only mention of the company in Dubai they liaised with was the alleged apology letter marked DEX 3 which letter would not explain why the proper procedures were not followed in an attempt to acquiring visas and the permits required by the complainants to travel or the fact that the Applicants asked for money from the complainants yet they were not required, per se, to receive it.

On whether there exists any exceptional or unusual circumstances to warrant the grant of bail, the 1st Applicant submitted that he has a child sitting national examinations and being the breadwinner he needed to have paid for the registration of the said examinations. It is in public domain that the registration deadline for the said exams which have already commenced passed even before the commencement of this appeal and application. This is not therefore a reason that can mitigate the application in his favour. Besides, this is a personal hardship matter which courts of superior jurisdiction have held does not constitute exceptional or unusual circumstance to warrant the grant of bail pending appeal. In Dominic Karanja v Republic(1986) KLR 612, it was held that,

“The previous good character of the Applicant and the hardships, if any, facing his family were not exceptional or unusual factors…”

The Appellants also asserted that they had been out in remand in the lower court and never absconded court and that therefore they were not a flight risk. But as noted in Dominic Karanja vs. Republic (supra) the previous good character of an Applicant cannot mitigate for grant of bail pending appeal. I did underscore the rationale for this, being that the Applicants were convicted by a properly constituted court and are therefore undergoing punishment because that conviction stands until it is set aside. See Ademba vs. Republic (1983) KLR 442and Mutua v Republic (1985) KLR, 497.

May I add that currently the High Court criminal appeals registry diary is very friendly in that this is an appeal likely to be heard in a few months to come. As such, the Appellants are unlikely to serve a substantial part of the sentence before their respective appeals are heard and determined.

In sum, I find that the application lacks merit. The same is dismissed with no orders as to costs. It is hereby ordered.

Dated and Delivered at Nairobi this 13th November, 2017

G.W. NGENYE-MACHARIA

JUDGE

In the presence of;

1. Mr. Otieno for the Applicants/Appellants.

2. M/s Akuja for the Respondent.