[2022] KEHC 13995 (KLR)

Musa v Republic (Miscellaneous Criminal Application E111 of 2022) [2022] KEHC 13995 (KLR) (Crim) (13 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13995 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E111 of 2022

JM Bwonwong'a, J

October 13, 2022

(Being an application for bail pending appeal)

Between

Hassan Nyamai Musa

Applicant

and

Republic

Respondent

Ruling

1. The applicant was tried and convicted of the offence of obtaining money by false pretences contrary to section 313 of the Penal Code (cap 63) Laws of Kenya. He was sentenced to serve two (2) years imprisonment.

2. Being dissatisfied with the judgement, he filed a petition of appeal dated July 21, 2022. Simultaneously, he filed an application seeking his release on reasonable bail and/or bond terms pending the hearing and determination of his appeal.

3. The application for bail/bond is premised on the following grounds. That his appeal has overwhelming chances of success, the applicant is the sole breadwinner of his family of seven children, that he will always attend court when required, and that he suffers from a medical condition that might get worse if he continues to stay in custody.

4. The application is also supported by an affidavit dated July 1, 2022 in which he has replicated the same matters that are set out as grounds in his notice of motion; which I hereby decline to reproduce.

The Appellant’s Written Submissions 5. Mr Mbae learned counsel for the applicant has submitted that the applicant is diabetic and suffers from hypertension which requires close and constant medical attention. Learned counsel also submitted that during trial before the subordinate court, the applicant attended court religiously without fail when he was released on a cash bail of Kshs 40,000. It was further submitted that the applicant is of good character and affirmed that he would not abscond.

6. Learned counsel further submitted that the appeal has overwhelming chances of success and it is therefore in the interest of justice that he should not continue to be kept in custody. He argued that the appeal is also based on a point of law namely a defective charge sheet and the monies in issue were paid to a company, where the applicant was a director and not the applicant personally. The matter was therefore civil in nature. Learned counsel urged the court to exercise its discretion and release the applicant on reasonable bail/bond terms. Reference was made to the case of Chimambhai v Republic [1971] EA 343, in which the court observed that:“the case of an appellant under sentence of imprisonment seeking bond lacks the strongest elements normally available to an accused person seeking bail before trial, namely the presumption of innocence, but nevertheless, the law of today recognises, to an extent of one time unknown, the possibility of conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right to appeal in criminal cases….”

The Respondent’s Written Submissions 7. Mr Otieno learned prosecution counsel submitted that the first issue for consideration is whether there exists exceptional or overwhelming circumstances to warrant the release of the applicant on bail pending appeal. He urged the court to consider whether the severe medical condition alleged constitutes an exceptional circumstance.

8. Secondly, it was submitted for the respondent that the evidence presented by the prosecution was cogent and proved the prosecution’s case beyond reasonable doubt. The weight of evidence adduced will therefore require a thorough re-evaluation of the entire evidence before a final decision is made.

9. On whether the appeal would be rendered nugatory, learned prosecution counsel submitted that the court is currently handling 2021 matters and there will not be any inordinate delay in hearing the appeal. He argued that the hearing may proceed on a priority basis subject to the court's diary for the appeal to be heard and determined within a reasonable time.

Issues For Determination 10. I have considered the application, the submissions of the parties, and the petition of appeal. The issue that arises for determination is whether the applicant has met the threshold for the grant of bail pending appeal.

Analysis And Determination 11. The provision of law that applies in applications for bail pending appeal is section 357 of the Criminal Procedure Code (cap 75) Laws of Kenya, 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:”

12. The principles for granting bail pending an appeal were reiterated in the case of Jivraj Shah v Republic [1986] KLR 605, which laid down the principles 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 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."

13. Furthermore, in the case of Chimambhai v Republic1971 EA 343, in respect of the same matter the court observed that:“The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”

14. Under article 49 of the Constitution of Kenya an accused person who is facing a criminal charge has a right to bond because he is presumed to be innocent till proven guilty, unlike a case where one is already convicted. I have carefully examined the grounds of appeal raised by the applicant. On the aspect of demonstration of exceptional or unusual circumstances, the court observes that the applicant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. The applicant also claimed to be diabetic and suffers from hypertension a condition that requires constant medical attention. However, the prison facilities within the jurisdiction of the court are in a position to manage the condition. That being the case, he can continue receiving treatment in the same facility or in a referral facility to which he may be taken if necessary.

15. It was also argued that the appellant's appeal is likely to be determined after the sentence is served. The appellant was sentenced to two years imprisonment. The applicant's apprehension, as I understood it is that the appeal will take a long to be heard.

16. The applicant states that the appeal herein has a high chance of success and one need only look at the judgment and petition of appeal to see this.

17. The main consideration in an application of this nature is whether the appeal has overwhelming chances of success as set out in Somo v R [1972] EA 472 on page 480, in which the court pronounced itself as follows:“There is little if any point in granting the application if the appeal is not thought to have an overwhelming chance of being successful, at least to the extent that the sentence will be interfered with so that the applicant will be granted his liberty by the appeal court. I have used the word "overwhelming" deliberately for what I believe to be good reason. It seems to me that when these applications are considered it must never be forgotten that the presumption is that when the applicant was convicted, he was properly convicted. That is why, where he is undergoing a custodial sentence, he must demonstrate, if he wishes to anticipate the result of his appeal and secure his liberty forthwith, that there are exceptional or unusual circumstances in the case. That is why, when he relies on the ground that his appeal will prove successful, he must show that there is an overwhelming probability that it will succeed."

18. In this case, I have considered the fourteen grounds of appeal raised in the petition of appeal. In ground 5 the applicant has faulted the trial court in failing to find that the applicant presented evidence that the plot for sale was in existence since it was registered in the name Diamond Acres Homes Ltd; a company in which the applicant was a director.

19. I find that the appeal has overwhelming chances of success in respect of his conviction with the result that he is hereby released on a cash bail of kshs 40,000/-, pending the hearing and determination of his appeal.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 13TH OF OCTOBER 2022.

J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMr Wainana holding brief for Mr. Njuguna for the applicantMr. Kiragu for the Respondent