[2022] KEHC 10861 (KLR)

Makokha v Republic (Criminal Appeal E007 of 2022) [2022] KEHC 10861 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10861 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Appeal E007 of 2022

RB Ngetich, J

June 9, 2022

Between

Mwanaidi Kheyo Makokha

Appellant

and

Republic

Respondent

Ruling

1. This appeal arises from Kiambu Criminal Case No. 2705 of 2016 where the accused/Appellant was charged with the offence of Stealing by Servant Contrary to Section 283(c) and 9 counts of Making a Document without Authority Contrary to Section 357 of the Penal Code.

2. He was found guilty of 7 counts before court. Count 1, 2, 3, 4, 5, 6, 8 and 10 counts and was convicted and sentenced. For count I he was fined Kshs. 6,000,000/= in default 4 years imprisonment and the other 6 counts each contracted a fine of Kshs. 50,000/= in default 12 months’ imprisonment.

3. The Appellant filed application dated 16th February 2022 seeking bail or bond pending appeal.

4. On 8th June 2022, Senior Counsel Dr. Khaminwa and Mr. Ngereza appeared for accused. The state counsel informed this court that he had sought time to file a replying affidavit but on perusing the file, he noted that that the accused was fined and in default to serve a jail term and submitted that the state is not opposing bond but prayed that the bond terms be commensurate to fine imposed. The state counsel also prayed that the court orders the applicant to deposit passport in court and the passport to remain in court until disposal of the appeal.

5. Dr. Khaminwa in response thanked the state counsel for being fair in handling this matter and undertook to ensure that his client will comply with bond terms Imposed as he is in conduct of this matter.

6. I have perused the trial court judgment and ruling on sentence and do confirm that in each of the seven counts, the trial magistrate imposed a fine and in default the applicant/accused to serve a term of imprisonment; Count I being a fined Kshs. 6,000,000/= in default 4 years’ imprisonment and the other 6 counts each a fine of Kshs. 50,000/= in default 12 months’ imprisonment.

7. Application for bond pending appeal is governed by Section 357(1) of the Criminal Procedure Code which provide as follows: -“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.”

8. In the case of Charles Owanga Alouch vs. Director of Public Prosecutions [2015] eKLR the court held as follows: -“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.

9. And in the case of Jiv Raji Shah vs. R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:a.Existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail.b.It appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of a 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, then, a condition of granting bail will exist.

10. From the supporting affidavit filed in support of the application herein, the applicant averred that he complied with trial court’s bond terms for the 6 years the trial case remained pending. She further averred that his appeal has high chance of success as there no credible evidence and direct evidence connecting the applicant to the offence and that incarceration has created anxiety. She urged this court to allow his application for bond and she undertakes to attend court when required.

11. I take note of the fact that 6 counts have an alternative jail term of 12 months. There are high chances that substantial part of the jail term will have been served by the time this appeal is determined in view of the fact that caseload in Kiambu High Court is high. I will not go into the merits of the appeal at this stage.

12. The state counsel is not opposed to the applicant being released on bond but urged this court to order applicant to deposit passport in court.

13. Though senior counsel Dr. Khaminwa made undertaking that he will ensure that applicant comply with bond terms, it would be safe for the applicant to deposit passport in court.

Final Orders1. Applicant/Appellant may be released on bond of Kshs 3 million with one surety of a similar amount.2. The applicant to deposit her passport in court pending hearing and determination of the appeal.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 9TH DAY OF JUNE, 2022. ....................................RACHEL NGETICHJUDGEIn the Presence of:Kinyua - Court ClerkMr. Ngeresa & Dr. Khaminwa for AppellantMr. Omolo holding brief for Dr. KhaminwaMr. Gacharia for State