[2024] KEHC 2406 (KLR)

Moses v Republic (Criminal Appeal E012 of 2022) [2024] KEHC 2406 (KLR) (4 March 2024) (Ruling)

Neutral citation: [2024] KEHC 2406 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Criminal Appeal E012 of 2022

RM Mwongo, J

March 4, 2024

Between

Pius Mugo Moses

Applicant

and

Republic

Respondent

Ruling

1. The brief background of this matter is that the applicant was charged and convicted with the offence of defilement in Gichugu S.O No.16 of 2019. On 24th June, 2022 he was sentenced to serve 20 years imprisonment.

2. Dissatisfied and aggrieved by the conviction and sentence, he filed an appeal in the present case, Kerugoya HCCRA No. E012 of 2022.

3. In the meantime, he filed this application for bail pending appeal through a notice of motion dated 9th March, 2023. The grounds on which the application is based are that:i.The appellant was convicted and sentenced to serve 20 years imprisonment on 24th June, 2022 in Gichugu Principal Magistrate's Court S.O number 16 of 2019. ii.The appeal has high chances of success.iii.There are exceptional or unusual grounds to persuade this court to admit the appellant to bail pending appeal.iv.The appellant, if admitted to bail pending appeal, will not pose any risk to society or to himself.

4. The application is supported by the applicant’s affidavit containing, inter alia, the following major averments:1. That he has been suffering from chest pains and stomach ulcers which deteriorated after he was convicted and sentenced to serve a custodial sentence. Further, that his condition has lately become worse and he had to be admitted at Embu level 5 Hospital from 3rd February, 2023 up to14/2/2023 due to chest complications and stomach ulcers.2. That he is on special diet which is difficult to get, and the doctor also recommended that he should always be wearing warm clothes and have an additional blanket, which has not been possible.3. That in view of the court's workload, he is apprehensive that he will serve substantial part of his sentence by the time the appeal is heard and determined.4. That he resides within the jurisdiction of this court and there is no likelihood that he will abscond bail if granted the same.5. The applicant deposed a further affidavit dated 13th March, 2023 to which he attached his medical records.6. The respondents deposed a replying affidavit with the following major averments:1. That the applicant moves this Court for Orders that he was convicted and sentenced to serve 20 years’ imprisonment on 24th June 2022 at Gichugu Principal Magistrate's Court.2. That the appeal has high chances of success.3. That the applicant has exceptional or unusual grounds to persuade the Court to admit the applicant to bail pending appeal.4. That the applicant, if admitted to bail pending appeal, will pose no risk to society or to himself.

Applicant’s Submissions 7. The applicant argued that the right to bail/bond is espoused within Section 357 of the Criminal Procedure Code which provides for admission to bail or suspension of sentence pending appeal.

8. The Bail and Bond Policy Guidelines of 2015, paragraph 4. 30 provides that,“With respect to bail pending appeal, the burden of proof is on the convicted person to demonstrate that there is an "overwhelming probability" that his or her appeal will succeed.”

9. The applicant submits that the prosecution's case was not solid and the court relied on circumstantial evidence in making the findings it did leading to the conviction and sentencing.

10. In Ibrahim Samon Ali v Republic [2021] eKLR, the case of Jivraj Shah v Republic [1986] KLR605 is quoted under page 8 outlining the principles taken into consideration in granting bail/bond pending appeal as follows:1. “The principal contribution in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.2. If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some 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, conditions for granting bail exists.3. The main criteria is that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued.”

Respondent’s Submissions 11. The respondent’s submissions on record relate to a case which is not the present one, and perhaps belong to another file.

Probation Officer’s Pre- Bail Report 12. Upon directions of the court a Probation Officer’s Pre- Bail Report was filed. It recommends that the applicant is suitable for bail/bond.

Issue 13. The only issue that arises is whether the applicant has satisfied the criteria for grant of bail/bond pending appeal.

Analysis and Determination 14. This court has considered the Notice of Motion Application dated 9th March, 2023, further affidavit dated 13th March, 2023 the Replying Affidavit sworn on 22nd May, 2023 and submissions by both parties.

15. Section 357 of the Criminal Procedure Code provides on bail pending appeal that: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:Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.2. If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.

16. Clearly, section 356(1) of the CPCprovides after the entering of an appeal by a person entitled to appeal, either 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, Further the proviso to section 356(1) requires that if the first application for bail pending appeal was made in the subordinate court and refused, the High Court can hear an appeal against the refusal.

17. After conviction, the right to be freed on bail is at the court’s discretion, and subject to certain principles. In the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR it was held that:“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. In the case of Jiv Raji Shah v Rb[1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:“(1)The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.(2)If it appears prima face from the totality of the circumstances that the appeal is likely to be successful on account of some 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, conditions for granting bail exists.(3)The main criteria is that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued.”

Whether Appeal has overwhelming chance of success 18. The applicant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act in Gichugu S.O No.16 of 2019.

19. The applicant submits that the prosecution's case was not solid and the court relied on circumstantial evidence in making the findings it did leading to the conviction and sentencing.

20. The appellant was convicted and sentenced to serve 20 years’ imprisonment on 24th June, 2022.

21. Further, he deposed that in view of the court's workload, he is apprehensive that he will serve substantial part of the sentence by the time the appeal is heard and determined.

Existence of exceptional circumstances 22. The applicant deposed that he has been suffering from chest pains and stomach ulcers which deteriorated after he was convicted and sentenced to serve a custodial sentence.

23. Further, he states that he is on a special diet which is difficult to get in prison, and the doctor also recommended that he should always be wearing warm clothes and have an additional blanket, which again has not been possible in prison. He also asserts that he did not breach bail/bond terms in the trial court. Further, the Probation Officer’s Pre- Bail Report recommended for bail/bond terms.

24. The Respondent in his replying affidavit deposed that the applicant, if admitted to bail pending appeal, will pose no risk to society or to himself.

25. I am satisfied, on the strength of the medical report attached by the applicant, that he is suffering a medical condition which satisfies one of the criteria for exceptional circumstances for grant of bond pending appeal.

26. Accordingly, I am minded to allow bond on the strength of the applicant’s stated illness. I would allow bond on the following conditions:a.The applicant shall provide a bond for Kshs 300,000/= with one surety of a similar amount to be verified by the Deputy Registrar.b.The applicant shall report twice monthly on 1st and 15th of every month to the officer in charge of Kianyaga police station.c.The OIC at Kianyaga PS shall maintain in a hard cover book or booklet, a record of the applicant’s endorsed attendances at the station and such record shall be availed to the court at every attendance in court.d.The applicant shall attend in court at every proceeding, mention or hearing of the matter in court.

27. Orders accordingly.

DATED AT KERUGOYA THIS 4TH DAY OF MARCH, 2024__________________________R MWONGOJUDGEDelivered in the presence of:Applicant - Present in Embu MainKagio - for Appellant/ApplicantState Counsel - MambaMurage, Court Assistant