[2017] KEHC 487 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL APPEAL NO. 28 OF 2017

MIKA NJAGI NJIRU..................................APPLICANT/APPELLANT

VERSUS

DIRECTOR OF PUBLIC PROSECUTION..................RESPONDENT

R U L I N G

1. This is a a ruling on a bail application dated 2/08/2017 seeking for orders that the applicant/appellant be admitted to bail pending appeal.

2. The grounds relied on is that the appeal may take long to be determined subjecting the applicant to prolonged stay in prison in the event that the appeal will be successful. The applicant says he is ready to abide with any conditions the court may impose and seeks as an alternative to be admitted to the same bail terms given by the trial court of Kshs.50,000/= with a surety.

3. It is also contended that this appeal has high chances of success. Further that the complainant had indicated that he wanted to withdraw the case but the court declined to allow him and proceeded to convict the applicant. The applicant also argues that bail is his constitutional right.

4. The application was opposed by the respondent who said that the offence of stealing a motor cycle is a felony and reconciliation under Section 176 of the Criminal Procedure Code excludes it. Further that alternative dispute resolution is not allowed unless it is done according to the law.

5. The respondent further argues that the appeal has no chances of success and that no exceptional circumstances have been shown to justify granting this application.

6. The legal provisions for bail pending appeal are different from bail for an arrested or an accused person. Under Article 49(1)(h) of the Constitution bail is still discretional in that the prosecution may demonstrate compelling reasons not to release the arrested or accused person which may justify denying bail. However, an accused person has the benefit of presumption of innocence until proven guilty which is a positive consideration in granting bail.

7. The applicant herein is a convicted person and has lost the benefit of presumption of innocence. He is already serving sentence until the conviction and sentence are set aside in the event that the appeal is successful. This places an application for bail pending appeal on a different platform in comparison with one under Article 49(1)(h) of the Constitution.

8. In an application for bail pending appeal, the principles are as set out in the Court of Appeal case of DANIEL DOMINIC KARANJA VS REPUBLIC Criminal Application No. 14 of 1986. The applicant is required to prove that

(i) That his appeal has high chances of success; or

(ii) That there exists exceptional or unusual circumstances.

9. The previous good character of the applicant as well as his faithful court attendance during the trial do not mitigate in favour of the applicant in an application for bail pending appeal. Neither does it matter that the complainant wanted to withdraw the case and his application was declined.

10. Furthermore, the court gave reasons for refusal for withdraw and the applicant did not challenge that ruling. What really matters is whether there was sufficient evidence to convict the accused which is now the subject of this appeal.

11. As for the perceived delay of hearing the appeal, this court has dates for hearing of appeals in the next few weeks. The appellant ought to follow up the admission of the appeal since proceedings have been typed and fix a hearing date.

12. I have carefully examined the grounds relied on in this application and it is my finding that the applicant has failed to satisfy the court that his appeal has chances of success or that there exists any exceptional or unusual circumstances.

13. Consequently, this application has no merit and it is hereby dismissed.

14. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 6TH DAY OF NOVEMBER, 2017.

F.MUCHEMI

JUDGE

In the presence of:-

Ms. Manyal for respondent

Ms. Muriuki for Mugambi for Applicant/Appellant

Accused present