[2022] KEHC 1699 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCRA NO. E027 OF 2021

MARTIN MUSEMBI MUTYELELI.....APPELLANT/APPLICANT

-VERSUS-

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

RULING

1. Before me is an application brought by way of Chamber Summons dated 31st March 2021 under section 356 and 358 of the Criminal Procedure Code (cap.75) seeking the following orders –

1. The appellant be granted bail pending hearing of appeal, Criminal Appeal No. 27 of 2021.

2. Appellant be granted leave to adduce further evidence which was not available at the hearing of the main case.

3. Appellant be granted leave to amend his petition of appeal.

4. Any other order this court may deem just.

2. The application was filed with a supporting affidavit sworn on 21st March 2021 by the applicant Martin Musembi Mutyeleli in which it was deponded that the applicant reported a robbery with violence incident on the night of 14th and 15th with Pw1 and Pw3 accompanied by Pw3 and Pw4 and others, and the next morning he went to the police station where he was told to pay Kshs.10,000/= or be charged with causing grievous harm. It was further deponded that after reporting the crime he wasinvolved in a motor cycle accident and had to remain in hospital for several months after which he was arrested and charged for grievous harm and that he believes that he was charged merely because he did not pay the Kshs.10,000/= demanded from him. He also deponed that the prosecution evidence was fabricated and attached statements of Pw3 and Pw4 which he deponed was not availed to court and that he intended to have it produced in court.

3. The application has been opposed by the Director of Public Prosecutions through grounds of opposition in the following terms –

1. That the applicant/appellant has not met standards for grant of bail pending appeal. That applicant has not demonstrated that the intended appeal stands any chance of success.

2. That the applicant has not met the threshold for adducing additional evidence. Pw3 and Pw4 testified in the trial court and their statements cannot be adduced as evidence.

3. That the respondent does not oppose the prayer to amend the petition of appeal.

4. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions and further submissions filed by Paul Kisongoa & company advocates for the applicant. I note that the Director of Public Prosecutions relied on grounds of opposition filed.

5. I will start with the prayer seeking leave to amend the appellant’s petition of appeal. I note that the Director of Public prosecutions does not oppose the request for amendment of the petition of appeal. I will thus grant leave to the appellant to amend the petition of appeal. The amended petition of appeal will be filed and served within 14 days from today.

6. I now turn to the request by the applicant/appellant to adduce further evidence on appeal. In this regard, section 358 of the Criminal Procedure Code (cap.75) allows an appellate court to admit fresh evidence in the interests of justice. Courts have severally dealt with this issue. I will only cite the case of Samuel Kangu Kamau –vs- Republic (2015) eKLR where the Court of Appeal stated as follows –

“It has been said time and again that the unfettered power of the court to receive additional evidence should be used sparingly and only where it is shown that the evidence is fresh and would make a significant impact in determination of the appeal.

7. In the present case, the applicant has not been candid on whether the intended additional evidence is new, and when he became aware of the same. He also refers to evidence of witness who testified at the trial, whom he had a chance to cross-examine. He has not complained that he was not provided with witness statements.

8. In my view, the applicant has neither demonstrated that the purported additional evidence is new, nor that he could not avail it or act on it at the trial. The fact that a witness contradicts his or her own witness statement recorded by the police is not sufficient reason to justify introduction of additional evidence on appeal. It would only go to the credibility of the witnesses and tested at the trial through cross-examination and not on appeal. Thus the said Pw1 and Pw3 should have been cross-examined at the trial.

9. I find that the applicant has not met the threshold for grant of leave to adduce additional evidence on appeal. I decline the request.

10. I now turn to the request for bail pending appeal. Bail pending appeal is not a constitutional right, but a statutory right under section 356 Criminal Procedure Code. Thus at the time of considering bail pending appeal, the court has to bear in mind that the presumption of innocence is no more, as a conviction by a court of competent jurisdiction creates a presumption of guilt.

11. In this regard, courts have stated over and over again, that an applicant for bail pending appeal has to demonstrate unusual or exceptional circumstances, for such an application to succeed – See Jivraj Shah –vs- Republic (1986) KLR 605.

12. At this stage of the application for bail pending appeal, I am not required to finally determine the appeal of the appellant. However, my duty is to determine whether the appellant has demonstrated any unusual or exceptional circumstances to show that his remaining further in custody would be an injustice.

13. In my view, merely relying on the grounds of appeal alleging conflicting prosecution evidence is not an unusual or exceptional circumstance. In my view, the appeal is arguable, but the appellant has not demonstrated any unusual or exceptional circumstance that would persuade this court to release him on bail pending appeal. I will thus not allow the request for release of the appellant on bail pending appeal. I will however, order that the hearing of the appeal be fast tracked.

14. Consequently and for the above reasons, I grant 14 days from today for the appellant to file an amended petition of appeal. I dismiss the request for adducing additional evidence on appeal and for bail pending appeal. I however order that the hearing of the appeal be fast tracked.

DELIVERED, SIGNED & DATED THIS 10TH DAY OF MARCH, 2022, IN OPEN COURT AT MAKUENI

………………………………….

GEORGE DULU

JUDGE