[2022] KEHC 11812 (KLR)

Momanyi v Republic (Criminal Appeal E056 of 2022) [2022] KEHC 11812 (KLR) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11812 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E056 of 2022

EKO Ogola, J

May 17, 2022

Between

Justus Osoro Momanyi

Appellant

and

Republic

Respondent

(Appeal from Judgment in Eldoret CM Cr Case No E363 of 2022 by Hon E Kigen, SRM)

Ruling

1. Before me is a Notice of Motion dated April 12, 2022 brought under section 357(1) of the Criminal Procedure Code and articles 49, 50 1nd 159 of the constitution of Kenya 2010 and it seeks for orders that;i.Spentii.That the honourable court be pleased to admit and or grant the appellant bail pending the hearing and determination of the appeal on such terms as the honourable court shall deem fit, appropriate and expedient in the circumstances.

2. The grounds for the application are set out on the face of the application as follows;a.That the appellant/applicant was charged with two counts in Eldoret CMCR No E363 of 2022 being threatening to kill contrary to Section 223/1 of the Penal Code and Malicious damage to property contrary to Section 339/1 of the Penal Code.b.That the appellant /applicant was arraigned in court on February 28, 2022 and a plea of guilty was entered by the trial court.c.That the appellant/ applicant was not represented by and advocate and did not understand the essence of pleading guilty.d.That the appellant /applicant was not given a chance to mitigate before he was sentenced to 4 years and 2 years imprisonment on count 1 and Count 2 respectively.e.That the appellant/ applicant being aggrieved with conviction and sentence that was passed on March 14, 2022 by the trial court has preferred an appealf.That the appeal herein has a high probability of success.g.That it is only fair and just that the appellant/ applicant presents his appeal in a sober and settled state of mind which cannot be achieved while the appellant/applicant is incarcerated.h.That the psychological and physical damage that the appellant/applicant will suffer while he is incarcerated may never be undone even after a successful appeal.i.That the appellant/ applicant will always attend court when required if he is released on bail pending appeal.j.That it is in the interest of justice and fair play that this instant application be allowed as prayed.k.That the Respondent will not be prejudiced in any manner if this application is allowedl.That this honourable court has jurisdiction to grant the orders sought herein.

3. The application is supported by the supporting affidavit of the applicant sworn on March 25, 2022. Annexed to the affidavit as JOM 1 are the proceedings in Eldoret CMCR No E363 of 2022

4. From the lower court proceedings, the appellant was charged with two counts. Count 1 was the offence of threatening to kill contrary to Section 223/1 of the Penal Code. It was alleged that;On the 25th day of February 2022 at Afrikana area in Turbo sub-county within Uasin Gishu county, without lawful excuse uttered the words fungua hii mlango nitakuuwa leo threatening to kill the said Naudia Momanyi

5. On count two, he was charged with malicious damage to property contrary to section 339/1 of the Penal code where it was alleged that ;On the 25th day of February 2022 at Afrikana area in Turbo sub county within Uasin Gishu County, willfully and unlawfully damaged window panes, the property of Naudia Momanyi.

6. He appeared before the Senior Resident Magistrate on the 28th February 2022 for plea taking. The record reads;The substance of the charge(s) and every element thereof has been stated by the court to the accused person, in a language he /she understands, who being asked whether he/she admits or denies the truth of the charge(s) replies; ni ukweli

7. The facts were read as they appear in the particulars of the charge and the accused stated that the facts were true.

8. The accused was then convicted on his own plea of guilt and before he was sentenced, the matter was referred to the probation officer for a probation report. On March 14, 2022 when the matter came up for mention, the trial court was of the view that from the probation report, the accused person was not suitable for a non-custodial sentence and he was sentenced to serve 4 years and 2 years on count 1 and count 2 respectively.

9. The appellant filed his petition of appeal on the 23rd March 2022 seeking that the conviction and sentence be quashed, set aside; and the court be pleased to order a retrial of the appellant before a court of competent jurisdiction.

10. Based on this appeal and the proceedings set out he now seeks to be released on bail pending appeal.

11. The application was canvassed by way of written submissions. The appellant filed his submission on April 7, 2022 while the respondent filed its submissions on April 20, 2022.

Determination 12. This court has considered the applicant’s Notice of motion dated March 25, 2022 brought under certificate of urgency and the submissions by both parties.

13. 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.

14. Also, article 49 (1) (h) of the the Constitution of Kenya, 2010 provides that:-An accused person has the right(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.

15. In the case of Gerald Macharia Githuka v Republic Criminal Appeal No 119 of 2004, the court stated that;“The cornerstone of the justice system is that no one will be punished without the benefit of due process including the right to exhaust the right to appeal. Incarceration before trial or pending hearing of an appeal cuts against this principle… “

16. In the case of Dominic Karanja v Republic (1986) KLR 612 the Court of Appeal stated that:-“(a)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;(b)The previous good character of the applicant and the hardships if any facing his family were not exceptional or unusual factors. Ill health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners;(c)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;(d)…………..”

17. I have considered the above authorities and in my view, in such an application, what the court should consider is whether the applicant has established the burden that the appeal has high chances of success .

18. I note that from the prosecution submissions, they are not opposed to the application being allowed. Infact, it is conceded that the facts as read out by the prosecution in the trial court did not disclose the charges presented and were therefore inconclusive and insufficient.

19. I have perused the record and I am satisfied that the applicant has complied with the provisions of section 357(1) of the Criminal Procedure Code and has filed an appeal.

20. Going by the proceedings of the trial court, I am satisfied that the appeal has high chances of success and should the court not grant the orders sought in this application, the applicant will be prejudiced as he may have served a substantial part of the sentence by the time the appeal is determined.

21. As such I allow the application and order that;1. The applicant be released on bond of Ksh 50,000 with a surety of the same amount or cash bail of the Ksh 30,000. 2.The applicant shall appear for mentions before the Deputy Registrar every 30 days pending the hearing and determination of the appeal, with effect from May 30, 2022.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 17TH OF MAY 2022. E K OGOLAJUDGE