[2022] KEHC 16342 (KLR)

Mutembei v Republic (Criminal Appeal 134 of 2022) [2022] KEHC 16342 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16342 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Appeal 134 of 2022

EM Muriithi, J

December 15, 2022

Between

Elijah Mutembei

Appellant

and

Republic

Respondent

Ruling

1. The appellant was convicted of the offence of Defilement contrary to section 8(1) (3) of the Sexual Offences Act No. 3 of 2006 and was sentenced to ten (10) years imprisonment on 15/8/2022.

2. He has approached this court vide an application dated 29/9/2022 seeking to be admitted to bail pending the hearing and determination of his appeal. He contends that his appeal has overwhelming chances of success, as the trial court did not considersection 8 (5) of the Sexual Offences Act, yet the minor herein represented herself as an adult only to later discover that she was 17 years old. According to him, the ingredients of the offence were not proved beyond reasonable doubt and therefore, his conviction and sentence are both unsafe and unlawful. He avers that he is a student at P University undertaking a degree course and thus the need to attend to it with the permission of the court. He avers that during trial, he was out on bail of Ksh.30,000 which he never jumped.

3. Miss B. Nandwa for the respondent swore a replying affidavit on 25/10/2022 in opposition to the application. She avers that the Appellant was rightly convicted and he does not have a fundamental right to be released on bail. She refutes that the appeal has any overwhelming chances of success, as there were no inconsistencies in the witness statements and the evidence on record. She feels that the Appellant will not have served his sentence before the appeal is heard and that is the retributive purpose for the sanction for the offence of defilement contrary tosection 8(1)(4) of the Sexual Offences Act. In her view, the Appellant has not demonstrated special and peculiar circumstances in order to be granted bail pending appeal, as he has not brought forth documents to prove that he is a student at P University. She prays for the dismissal of the application as it is an abuse of the court process.

4. The application was heard by way of written submissions which were duly filed on 28/11/2022 and 30/11/2022. The Appellant urges that since the complainant was months to the age of majority and she carried herself as an adult by confessing to having sex with a different person, the trial court ought to have taken cognizant of section 8 (5) of the Sexual Offences Act, and cites Eliud Waweru Wambui v Republic (2019) eKLR. He urges that he has demonstrated that the appeal has high chances of success, and prays to be admitted to bail so that he can continue with his studies at Pwani University.

5. The respondent brings to the court’s attention the principles for granting bail pending appeal as were reiterated in Jivraj Shah v Republic(1996) eKLR. It urges that since the appellant did not raise the defence under section 8(5) of the Sexual Offences Act, during the defence stage, the same is an afterthought having been raised during appeal. 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 exceptional 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. It prays for dismissal of the application and the appeal be listed for hearing and determination during the Rapid Results Initiative (RRI) slated to be conducted in January, 2023, since the proceedings and judgment are ready, 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 submitted that he is a 3rd year student at P University and he wishes to be admitted to bail so that he can continue with his studies. That is substantiated by the record where it is shown that the Appellant was indeed studying at P University during the entire trial period. He further contended that his appeal has overwhelming chances of success, as the evidence on record was contradictory and the trial court did not consider the provisions of section 8 (5) of the Sexual Offences Act.

8. The court finds that the Appeal raises certain substantial points of law to be urged on appeal, as to the inconsistencies of the evidence adduced and the non-consideration of the provisions of section 8 (5) of the Sexual Offences Act. The composite effect of the points of law, in the words of the court in Jivraj Shah(supra), is to make it appear to this court that “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.”

9. The court is of the view that the need for the appellant to continue and probably finish his studies at P University is an exceptional circumstance to warrant grant of bail pending appeal. The fact that the appellant complied with the terms of bail granted to him in the trial court is not very relevant in determining the application for bail at this stage.

ORDERS 10. Accordingly, for the reasons set out above, the court allows the appellant’s application dated 29/9/2022 on terms that the appellant is admitted to bail pending appeal on terms that he executes a bond of Ksh.500,000/= with one (1) Surety for a similar amount.

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