[2022] KEHC 16334 (KLR)

Murithi v Republic (Criminal Appeal E128 of 2022) [2022] KEHC 16334 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16334 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal E128 of 2022

EM Muriithi, J

December 15, 2022

Between

Amos Murithi

Appellant

and

Republic

Respondent

Ruling

1. The appellant was convicted of the offence of Trafficking in Narcotics contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances Control Act, 1994.

2. He has filed a notice of motion under certificate of urgency dated 29/9/2022 in this court seeking admission to bail pending the hearing and determination of his appeal. He contends that his appeal has overwhelming chances of success, particularly on the failure of the trial court to acknowledge that the gaps in the prosecution’s case with regard to non-compliance with the requirements of section 74 of the Narcotic Drugs and Psychotropic Substances Control Act, 1994, and the failure to produce a certificate of valuation were fatal to the prosecution’s case, coupled with very weak circumstantial evidence. He avers that during trial, he was out on bail which he never jumped.

3. On 6/10/2022, the respondent filed grounds of opposition that, “The application is incompetent, lacks merit and an abuse of court process and ought not to be entertained by this Honorable court; the appeal is weak and does not at all have any high chance of success because the prosecution tendered a water tight case and proved its case beyond reasonable doubt; the applicant/appellant had been convicted rightly and does not have a fundamental right to be released on bail or bond; there are no inconsistencies in the witness statements and evidence on record; the Applicant has not met any ground at all to be granted bail and further that there are no compelling reasons to have him granted bail pending Appeal; and the application is misleading, full of half-truths and it does not disclose any special/peculiar circumstances to grant the order prayed for and ought to be dismissed.”

4. The application was heard by way of written submissions which were duly filed on 27/10/2022 and 21/11/2022. The appellant urges that he has satisfied the threshold for grant of bail pending appeal, and cites Jivraj Shah v Republic(1980) KLR 605, Arvind Patel v Uganda S.CCr. Appeal No. 1 of 2003, Somo v Republic(1972) E.A 476,Samuel Macharia Njagi v Republic (2013) eKLR and George Wambugu Thumbi v Republic (2018) eKLR.

5. The respondent reminds the court of the principles for granting bail pending appeal as were reiterated in Jivraj Shah v Republic (1996)eKLR. It urges that since the proceedings of the trial court have not been availed, the court does not have the benefit of perusing them to determine whether the grounds of appeal disclose an arguable appeal with high chances of success. It urges that section 74A does not make it mandatory for the accused person to be present when the seized drugs are destroyed, and cites Moses Banda Daniel v Republic (2006)eKLR. It urges that the appellant was properly convicted and sentenced by the trial court, and as such he is serving a lawful sentence. It urges that the appellant has not demonstrated any unusual circumstances to warrant grant of bail pending appeal, and the fact that he did not breach the bail conditions set by the trial court is not an exceptional circumstance, as was held in Peter Hinga Ngotho v Republic (2015)eKLR. It urges that although the appellant did not abscond during the trial, there is a high incentive to abscond now that he is convicted, and there is no possibility that he would have served a substantial portion of his sentence before the appeal is heard and determined, and relies on Thambura Lenard Mucui v Republic (2021)eKLR.

Determination 6. The principles to be considered in an application for bail pending appeal pursuant to the provisions of section 356 and 357 of the Criminal Procedure Code were set out in Jivraj Shah v R (1986) KLR 605 which considered earlier decisions of the Court and expounded on the factor of overwhelming chances of success and held as follows: - “There is not a great deal of local authority on this matter and for our part such as we have seen and heard tends to support the view that the principal consideration is if there exist exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. 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 urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist. The decision in Somo v Republic (1972) EA 476 which was referred to by this court with approval in Criminal Application 5 No. NAI 14 of 1986, Daniel Dominic Karanja v Republic where the main criteria was stated to be the existence of overwhelming chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed. The proper approach is the consideration of the particular circumstances and the weight and relevance of the points to be argued. It is almost self defeating to attempt to define phrases or to establish formulae.”

7. The appellant contends that his appeal has overwhelming chances of success, because the trial court did not acknowledge the gaps in the prosecution’s case with regard to non-compliance with the requirements of section 74 of the Narcotic Drugs and Psychotropic Substances Control Act, 1994, and the failure to produce a certificate of valuation. He contends that the case herein was based on very weak circumstantial evidence, and the fact that he never jumped bail during trial, warrant his release on bail pending appeal.

8. It is true that the proceedings of the trial court have not been availed to enable the court gauge the probability of the appellant’s appeal succeeding. It is further true that the sentence meted out to the appellant has not been disclosed to enable the court determine whether a substantial portion of it will have been served by the time the appeal will be heard and fully determined.

9. The court finds that the appellant has not shown any exceptional circumstances to warrant his release on bail pending appeal.

Orders 10. Accordingly for the reasons set out above, the appellant’s application for bail pending appeal dated 29/9/2022 is declined.

11. However, the appellant’s appeal will be heard on priority basis, in line with the holding in Thambura Leornard Mucui v Republic (2021) eKLR.Order accordingly.

DATED AND DELIVERED ON THIS 15THDAY OF DECEMBER, 2022. EDWARD M. MURIITHIJUDGEAppearances:M/S Mithega Kariuki & CO Advocates for the Applicant.Mr. Masila, Principal Prosecution Counsel for DPP.