[2023] KEHC 26327 (KLR)

Muigai v Republic (Criminal Appeal E040 of 2023) [2023] KEHC 26327 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26327 (KLR)

Republic of Kenya

In the High Court at Nakuru

Criminal Appeal E040 of 2023

SM Mohochi, J

December 11, 2023

Between

Edward Kariuki Muigai

Applicant

and

Republic

Respondent

Ruling

(Application for Bail pending Appeal) 1. Before me is a notice of motion dated November 3, 2023 supported by an undated sworn affidavit of the applicant, filed pursuant to Part 2 and article 49 (h) of the Constitution of Kenya and section 356 and 357 of the Criminal Procedure Code Cap 75) Laws for the following orders:a.Spent.b.That, this Court be pleased to admit the Appellant/Applicant to bail or bond pending the hearing and determination of the appeal.

2. The Application is premised on the following grounds: -a.That the Appellant is currently incarcerated at Nakuru Main Prison having been convicted on October 11, 2023, and as at the date of this application, the matter is pending sentencing slated for November 8, 2023. b.That, under the Constitution and Criminal Procedure Code, an appellant is entitled to bail or bond pending the trial of his case.c.That, there are no compelling reasons in this matter as would result in denial of the Appellant the right to be released on bail/bond pending appeal.d.That the Appellant is apprehensive that the appeal filed herein may take a lengthy period to be determined.e.That the continued incarceration of the Appellant may be adverse to the entire appeal filed herein should the conviction and sentence be ultimately set aside and/or quashed.f.That the right to bail/bond is provided for by the letter of the Constitution of Kenya , 2010 at article 49 (1) (h).g.That the main issue in such a matter is only whether or not the Appellant will avail himself to court during the hearing of the appeal.h.Aggrieved, the applicant preferred an appeal and now seeks to be released on bail pending appeal.i.The application is premised on grounds that that the Appellant was on cash bail during trial at the lower court and complied with the bond terms during the trial the lower court and promises to abide by the bond terms pending appeal.j.That the applicant is grounded in the society is a family man with a young family, has a permanent residence and is in no way a flight risk, and will abide by the terms that will be set by the honorable court.k.That the appeal has exceptional circumstances and overwhelming chances of success.

3. The Applicant Avers that, he was convicted on October 11, 2023 with the offence of defilement- contrary to section 8 (1) (2) and indecent act with a child contrary to section (1) of the Sexual Offences Act of the Laws of Kenya.

4. That, at the time of swearing this affidavit, he the Applicant was awaiting sentencing slated for 8th November, 2023 as the court called for a pre-sentence report from the Nakuru Probation office.

5. That, he was charged on October 29, 2019, and released on cash bail of amount of Kes 300, 000/- and had been attending the case while out on Bail.

6. That, he has attended court religiously while he was out on bail and that he will continue to abide by the terms that this court may impose until determination of the appeal.

7. That, he has already filed a petition of appeal within the timelines appealing against the conviction.

8. That, he is advised by his counsel, and which advised he verily take to be sound that, the Constitution of Kenya , 2010 and section 357 of the Criminal Procedure Code cap 75 anticipates the release of an applicant on bail/bond during the pendency of his appeal unless there are compelling reasons for such a right to be withheld.

9. That, no such compelling reasons exist and none have indeed been disclosed any way or at alI.

10. That, in this appeal there exist no special circumstances or indeed are compelling reasons as would disentitle him to bail/bond pending the hearing and determination of the appeal.

11. That he has already applied for proceedings which are in the process of typing and preparation of the record, once the file has been sent back to the registry it is currently still in chambers pending sentencing.

12. That,during the entire trial in the lower court, he was on bond and without fail attended court and he further promises that, if granted bail/bond he will attend to all court’s sessions during the hearing of the appeal.

13. That, he is well known within the jurisdiction of this court, having attended court since being charged with the offence to date.

14. That, he is equally well grounded and rooted in the community with a permanent place of residence on his father’s land where he has a permanent place of abode.

15. That, he also has a young family comprising a wife and 4 children (3 stepchild rent and 1 biological child).

16. That, he is thus not a flight risk in any way or at all and that he has equally lodged an appeal within time and which appeal has high chances of success.

17. That, he is equally apprehensive that the appeal filed herein may take a long time to be heard determined and may eventually be rendered a mere academic exercise, with my continued incarceration.

18. That, save for the instant charge, he is a first offender, who has strong societal roots, he has a young child and a permanent place of residence, all which factors will ensure he abides by the bail/bonds terms as may be set by this honorable court.

19. That, he therefore humbly prays that his Application for bail pending Appeal be allowed and that he be admitted to bail.

Respondents Case 20. By a replying affidavit dated December 4, 2023 Ms Monicah Wanjiru Mburu an Advocate of the High Court Kenya and working as Prosecution Counsel in the Office of the Director of Public Prosecutions opposes the Application.

21. That, the appellant/applicant was charged with the offence of defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2003, tried and convicted of the said offence and subsequently sentenced to serve 20 years’ imprisonment.

22. That, the appellant/applicant can no longer place reliance on article 49(1)(h) of the Constitution as the he no longer enjoys the presumption of "innocent until proven guilty" as he has already been convicted of the offence.

23. That, article 49 (1)(h) is only available to accused persons during their primary trial since they are still presumed innocent.

24. That, the appellant/applicant's likelihood to abscond is now real as the appellant/applicant is already a convict and is aware that if his appeal does not succeed, he will have to serve the sentence.

25. That, even if he was granted bond/bail pending trial and faithfully attended Court then; this court cannot be guaranteed of the same as circumstances have now changed and the Applicant is a convict.

26. That, from the pre-sentencing report attached to the further affidavit and marked "EKM 2", the Appellant/Applicant still maintains innocence even after being convicted; this only serves to show that there is a high likelihood that he may abscond considering the attitude that he has towards the offence.

27. That, from the petition of appeal attached, this appeal does not have any chance of success as the grounds raised therein lack merit.

28. That, the application is a non-starter, bad in law and lacks merit and that the same should be dismissed.

Analysis and Determination 29. Having considered the present application, the affidavits in support and opposition of the said application, as well as the respective submissions of the parties, it is my view that the main issue for determination by this court is;Whether the applicant has demonstrated 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?

30. 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 JivRaji Shah v R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:“(1)The principle 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 are 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.”

31. Also, in the case of Dominic Karanja v Republic (1986) KLR 612 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”

32. I am of the considered view that no exceptional or unusual circumstances have been presented to warrant the Appellant being admitted to bail.

33. The applicant has not in any way, attempted to or demonstrated that there are overwhelming chances of the Appeal succeeding and that the Petition of Appeal does not prima facie demonstrate a set of circumstances which disclose substantial merit in the appeal, which could result in the appeal being allowed.

34. Based on the foregoing, this court accordingly finds the application for bail pending Appeal dated November 3, 2023, to be without merit and the same is accordingly dismissed.

It is so ordered

SIGNED, DELIVERED VIRTUALLY ON TEAMS PLATFORM ON THIS 11TH DAY OF DECEMBER 2023. ________________________MOHOCHI S.MJUDGE