[2023] KEHC 25245 (KLR)

Muthusi v Republic (Criminal Appeal E038 of 2023) [2023] KEHC 25245 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25245 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E038 of 2023

MW Muigai, J

November 8, 2023

Between

Florence Mutindi Muthusi

Applicant

and

Republic

Respondent

Ruling

Notice Of Motion 1. Vide a Notice of Motion under a Certificate of Urgency dated 22nd August, 2023 and filed in court on 23rd August,2023, brought under Sections 357 of the Criminal Procedure Code.

2. The Applicant seeks the following Orders that:1. This honorable court do stay execution of the sentence imposed by the lower court pending the hearing of the appeal.2. The court do issue such further orders as it deems fit and just.3. The grounds upon which this application was premised are in the body of the said application.

Supporting Affidavit 4. The application was supported by an Affidavit dated 22nd August,2023 and filed in court on 23rd August,2023, sworn by Florence Mutindi Muthusi, the Applicant herein, wherein she deposed that on 10th August,2023 she was charged before the Chief Magistrate’s Court at Kangundo in Criminal Case No. E834 of 2023 for the offence of causing Grievous harm contrary to Section 234 of the Penal Code. (attached and marked copy of the charge sheet).

5. Deposing that she pleaded guilty to the said charge and was convicted and sentenced to serve a term of eight (8) years imprisonment. (annexed and marked copy of the proceedings and sentence).

6. Further, that her plea of guilty was not unequivocal as the Trial Magistrate failed to take the necessary steps to ensure that she understood every element of the charge and appreciated the consequences of pleading guilty to the charge considering that she was unrepresented during the trial.

7. Opining that the trial Magistrate failed to warn her that the charge/offence she was about to plead guilty was a serious offence that carried a possible sentence of life imprisonment.

8. He deponed that she has lodged an appeal against the conviction and sentence which appeal she verily believe has good grounds and presents an arguable case (attached and marked copy of the petition of appeal).

9. It was her case that she is advised by her advocate on record that looking at her grounds of appeal, there is overwhelming chances of success; and she is the only bread winner on whom her young family and children depends.

10. She will be highly prejudiced if she is not granted bail since she will have served the whole or substantial portion in prison term before her Appeal is heard and determined.

Replying Affidavit 11. The state in its Replying Affidavit dated 20th September 2023 and filed in court on 21st September,2023 sworn by Martin Mwongera, the state counsel wherein, he deposed that the Appellant was charged with offence of Grievous Harm contrary to Section 234 of the Penal Code.

12. Further that the state opposes the application for bond pending appeal on ground that the appellant has not demonstrated that her appeal has any chance of success.

13. Deposing that the assertion that the Applicant appeal has high chances of success can only be proved at and upon the full hearing of the Appeal herein. Consequently, the prayer for bail pending appeal on grounds that his appeal has high chances of success is misconceived, unmerited and premature and therefore it should not be granted.

14. And further that the application lacks merit and should be dismissed in its entirety.

15. The matter was canvassed by written submissions.

Submissions Appellant/Applicant’s submissions 16. The appellant in her written submissions dated 12th October, 2023 and filed in court on 13th October,2023, wherein counsel for Appellant raised the following issue for determination.

1. Whether the Applicant has met the threshold for the grant of bail pending the hearing and determination of her appeal. 17. As to the aforementioned issue counsel placed reliance on Article 49 (1)(h) of the Constitution of Kenya 2010 provides that: -“An accused person has the right to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.”

18. Counsel for the Applicant further relied on the cases of Charles Owanga Aluoch Vs Director of Public Prosecutions [2015] eKLR and Jiv Raji Shah Vs R [1966] eKLR 605 to buttress her position on considerations for granting bail pending appeal.

19. Similarly, counsel placed credence on the case of Dominic Karanja Vs Republic [1986] KLR 612, where it was observed that“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 minor relevant considerations would be whether there were exceptional or unusual circumstances”

20. Counsel averred that the law on bail pending appeal is not in doubt as it involves exercise of judicial discretion. Contending that the court has wide discretion to grant bail pending the hearing of the Applicant’s appeal and like all discretions, the discretion must be exercised judiciously.

21. It was submitted that the principles guiding the exercise of that discretion have crystallized over time with courts formulating several principles and guidelines upon which bail pending appeal is anchored.

22. Counsel while citing the cases of Gerald Macharia Githuka Vs Republic Criminal Appeal No. 119 of 2004, Jiv Raji Shah Vs R [1966] klr 605 and Arvind Patel Vs Uganda S.C Cr. Appeal No. 1 of 2003, submitted that the applicant has fully complied with all the requirements for her to make an application for grant of bail pending appeal which requirement is filling of the Petition of Appeal and that the Applicant’s Petition of Appeal poses substantial points of law to be argued in pursuit of the Appeal.

23. It was the counsel’s submission that it is well established principle of law that the Applicant need not demonstrate that all the conditions for admission to bail pending appeal have been met, but the Applicant having satisfied a combination of two or more conditions sufficiently qualified to admission to bail pending appeal. To buttress this point reliance was made on the case of Samuel Macharia Njagi Vs Republic [2013] Eklr and Arvind Patel Vs Uganda S.C Cr. Appeal No. 1 of 2003.

24. As to whether the appeal has overwhelming chances of success, counsel placed credence on the case of SOMO VS R at page 480 and submitted that the Applicant herein has proved that her appeal has high chances of success and as such she prayed that she be granted bail as there are exceptional or unusual circumstances to warrant the court’s exercise of its discretion.

25. It was averred that the Applicant’s plea of guilty was not unequivocal as the Trial Magistrate failed to take the necessary steps to ensure that the applicant understood every element of the charge and appreciated the consequences of pleading guilty to the charge considering the applicant was not represented during trial. Counsel while submitting on what constitute exceptional circumstances placed reliance in the case of R Vs Kanji [1946] eklr and Chimambhai vs Republic [1971] EA 343 on high probability of the sentence being served before the Appeal is heard.

26. Counsel urged the court to allow this application and admit the Applicant to reasonable bail terms pending the hearing and determination of the appeal herein, opining that the Appeal has an overwhelming chance of success and that the Applicant is the sole bread winner on whom her young family and children depends.

27. Counsel relied on the following authorities annexed to her submissions:1. Charles Owanga Aluoch Vs Director of Public Prosecutions [2015] eKLR.2. Dominic Karanja Vs Republic [1986] KLR 612,

Respondent’s Submissions 28. The Respondent in its submissions dated and filed in court on 19th October, 2023 wherein state counsel placed his reliance on Section 375 (1) of the Criminal Procedure Code.

29. State counsel further placed his reliance on the case of Jivraj Shah Vs Republic [1986] KLR 605 to buttress his point on the principles for granting bond pending Appeal.

30. It was his submission that the assertion that the Applicant appeal has high chances of success can only be proved at and upon the full hearing of the Appeal herein. Consequently, the prayer for bail pending appeal on grounds that his appeal has high chances of success is misconceived, unmerited and premature and therefore it should not be granted.

31. Counsel prayed that this application be dismissed in its entirety.

Determination/analysis 32. I have considered the Application, supporting affidavit, replying affidavit, annexures, submissions and authorities cited by both counsels.

33. The issue for determination are whether the appellant application has met the threshold for granting of bail pending appeal and if the above in positive, what are the conditions.

34. The provision of law that applies to bond/bail pending appeal is Section 357 of the Criminal Procedure Code which provides thus:“(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:

35. Pursuant to Article 49 of the Constitution of Kenya grants an arrested person to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.

36. The import of the aforementioned constitutional provision is the presumption that the arrested person is innocent until proven guilty.

37. In the case of Masrani v R [1060] EA 321, it was held that: -“Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction.”

38. In the case of Chimambhai v Republic 1971 EA 343 J. Harris made another observation in such an application when he said;“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……...” (emphasis added).

39. The principles for granting bond pending an appeal were reiterated in the case of Jivraj Shah v Republic (1986) eKLR, 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 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.”

40. In the instant case, counsel for the Applicant submitted that the applicant has complied with all requirements for her to make an application for grant of bail pending appeal and one of the requirements is filing of the petition of appeal, the petition of appeal poses substantial points of law to be argued in pursuit of the said appeal.

41. Further that the appeal has high chances of success and there are exceptional or unusual circumstances to warrant the court’s exercise of its discretion the considering that the Applicant’s plea of guilty was no unequivocal and that the Applicant was unrepresented during trial.

42. The Prosecution on the other hand submitted that the assertion that Applicant’s appeal has high chances of success can only be proved at and upon the full hearing of the appeal.

43. It is worth noting that the Application such us the one before this court, the applicant has the burden to establish that the appeal has high chances of success or that he is likely to serve a substantial part of the sentence before the appeal is heard.

44. In this case, only the Petition of Appeal and proceedings were availed. The court has had the opportunity to look into the grounds of appeal in the face of the petition of appeal in which among other grounds the Applicant took issue with Trial Court convicted her on her own plea guilty that was unequivocal and failing to take necessary steps to ensure that the Applicant understood every element of the charge considering the applicant was unrepresented.

45. As to the proceedings, it is apparent that the gravity of the sentence was explained to the Applicant and the charges were read over to her in Kiswahili and she stated “it is true” consequently, facts of the case were read over to her and she replied “facts are true”.

46. The applicant having pleaded guilty was sentenced to 8 years in jail on 10/8/2023. In my viewthere is no likelihood of her having served a substantial part of the sentence before the proceedings are typed and the appeal is heard. Furthermore, the Courts have currently adopted a policy of quick disposal of cases and the possibility of the appeal taking long to be heard does not arise.

47. On the aspect of demonstration of exceptional or unusual circumstances, court observes that, the Appellant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal.

48. The fact that the Applicant is a sole bread winner on whom her young family and children depend on cannot be gain said to be unusual and exceptional circumstance.

49. The Court of Appeal in Dominic Karanja v Republic (1986) KLR 612, where it was observed thus:“(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;(d)…………..” (emphasis added)

50. The Court thus finds no merit in the instant application and makes the following order;a.The application is dismissed.b.The appeal be fixed for hearing and determination on priority basis within 90 days.

RULING DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 8TH DAY OF NOVEMBER 2023 (VIRTUAL/PHYSICAL CONFERENCE).W.M. MUIGAIJUDGEIn the presence of:No Appearance - for the AppellantMr. Mwongera – for the RespondentGeoffrey/Patrick - Court Assistant (S)