[2023] KEHC 25238 (KLR)

Ndeto v Republic (Criminal Appeal E039 of 2023) [2023] KEHC 25238 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25238 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E039 of 2023

MW Muigai, J

November 8, 2023

Between

Brian Ndeto

Applicant

and

Republic

Respondent

Ruling

Notice of Motion 1. Vide Notice of Motion under a Certificate of Urgency dated and filed in court on 18th September,2023, brought under Articles 22,48,49 (i), (h) 50,51, and 159 of the Constitution of Kenya, Section 357 of the Criminal Procedure Code.

2. The Applicant seeks the following Orders that:1. This court to admit the Applicant bail/bond pending the hearing and determination of the appeal filed herein.

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 and filed in court on 18th September,2023 sworn by Bernard M. Kitindio, the Applicant’s Advocate herein, wherein he deposed that the Applicant was on 22/8/2023 sentenced to 10 years imprisonment and that being aggrieved and dissatisfied by the conviction and sentence of the trial court in Criminal Case No. SO E 005 of 2022 has appealed to the High Court against the conviction and sentence via a petition of appeal dated 28th August,2023 (annexed and marked copy of the Petition of Appeal).

5. The appeal has overwhelming chances of success and its therefore only fair and just that the Appellant/Applicant be released on bond/bail pending the hearing and determination of appeal lest he serves the whole or a substantial part of the sentence which will be prejudicial to him if the appeal is held in his favor (annexed and marked copy of the judgment).

6. Deposing further that the Appellant is a responsible citizen, University student studying Bachelor of Commerce in Machakos University who has attended court proceedings diligently during trial which time he was also out on bond and at no point did the Appellant abscond court or bar investigations held at that time and he is likely to lose immensely while he is in custody (annexed and marked copies of the student’s university card and academic transcript).

7. He deposed that the Appellant has a very supportive family with members who are willing to abide with the terms set by this Honorable court and they will ensure the Appellant attends court when required as they had continuously done during the trial of this matter in the lower court.

8. Further that during the trial of his case in the lower court his father deposited a title of his property to facilitate his release and that the same surety which is in custody of Mavoko Law Courts, this Court to consider the same adopted as his surety for his bond pending the hearing and determination of this appeal.

Replying Affidavit 9. The State in its Replying Affidavit dated and filed in court on 5th October,2023 sworn by Martin Mwongera, the State Counsel wherein, he deposed that the Appellant was charged with offence of Defilement contrary to Section 8 (1) as read with Section 8 (2) of Sexual Offences Act No. 3 of 2006 and that the State opposes the application for bond pending appeal on ground that the Appellant has not demonstrated that appeal has any chances of success.

10. Deposing that the assertion that his 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.

11. He deposed that the solemn assertion that by the Appellant that he will not abscond if released on bond, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending Appeal. State counsel opined that the application lacks merit and should be dismissed in its entirety.

12. The matter was canvassed vide written submissions.

Submissions Appellant/Applicant’s submissions 13. The appellant in his written submissions dated and filed in court on 11th October,2023 wherein counsel for Appellant raised the following issues which he submitted on sequentially.

14. As to whether or not the Appellant’s/Applicant’s Appeal has high chances of success, Counsel submitted that the reason that the learned Trial Magistrate erred in law and facts by convicting the Appellant was based on a defective charge sheet and the Trial court in paragraph 30 & 31 of the judgement signed and delivered on 1/8/2023 acknowledged the fact and overlooked the same to the disadvantage of the Appellant an ignored principal in the criminal justice that any benefit of doubt ought to be accorded to the accused person.

15. Counsel contended that an accused person is entitled to not only be charged with an offence recognized under the law but also to be furnished with all the necessary details of the offence so as to enable him appreciate the nature of the charge against him and to prepare an appropriate defence. The converse will prejudice an accused person’s right to a fair trial contrary to Article 50 (2) (b) of the Constitution which is the rationale of Section 134 of the Criminal Procedure Code.

16. It was the contention of the Counsel that the charge sheet as per the amended charge was defective since there was no offence of defilement if the particulars relate to attempt to cause penetration and therefore for defilement to be proved there must be actual penetration.

17. According to Counsel, the Appellant/Applicant did not know which offence he was facing and in the circumstances this position breaches fundamental constitution right of the accused persons and also raises doubt and the benefit of doubt must always be accorded to the accused person.

18. To support this position counsel placed reliance on the case of Bernard OmbunavsRepublic [2019] eKLR, and submitted that the main charge was defective hence the Appellant/Applicant’s appeal has high chances of success and in the circumstances the same must be struck off and the Appellant be set at liberty.

19. On whether or not there was an existence of exceptional or unusual circumstances, it was the counsel’s submission that the Appellant was sentenced to ten years and there is likelihood of the same serving either substantial part of the sentence before his appeal is head and determined. Opining that the Appellant is a second years student at Machakos University pursuing Bachelor of Commerce. Reference was made to a letter dated 6/10/2023 attached to the Appellant’s further lists of documents dated 11/10/2023. Counsel averred that the appellant is innocent and that his incarceration on charge which the state did not prove beyond reasonable doubt has affected his education and continued stay on conviction will continue to subject his education in jeopardy.

20. It was the case of the Applicant that his obedience of the bond terms during the Trial speaks well of him and is a good indicator that it is safe for him to be released on bond pending appeal and that the Replying affidavit by the state has not raised a single ground for disallowing this application but only generalization of issues without analytical consideration of the evidence tendered during the trial hence replying affidavit is only intended to deny the Appellant’s prayer to admitted on bail/bond pending the hearing and determination of his appeal.

21. Counsel relied on the case of Anisa FarajvsRepublic [2003] eKLR to support his position on what the court has to consider before granting the bail pending appeal. And opined further that the application dated 18th September,2023 meets the threshold requirements and thus urged the court to hold so and allow the application and admit the applicant to reasonable bond or bail pending the hearing and determination of his Appeal.

Respondent’s Submissions 22. 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.

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

24. 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.

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

Determination/Analysis 26. This Court considered the Notice of Motion Application dated 18th September 2023, the Replying Affidavit sworn on 5th October, 2023 and submissions by both parties.

27. I find the issue is whether the Appellant’s application has met the threshold for granting of bail pending appeal and if the above in positive, what are the conditions.

28. The provision of law that applies to bond/bail pending appeal is Section 357 of the Criminal Procedure Code 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: (emphasis added)”

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

30. This Court considered the decisions above on whose basic point is that it is the discretion of the court to grant bail pending appeal, which discretion should be exercised judiciously. In such an application, the applicant has the burden of establishing that the appeal has high chances of success or has a high likelihood of serving a substantial part of the sentence before hearing the Appeal.

31. In the application herein, only the judgment of the Trial Court was availed and the Petition of Appeal attached to application was available for this court to infer from but not the proceedings. This Court is not in a position to peruse the record to establish whether an arguable appeal with high chances of success has been disclosed by the grounds of appeal or not.

32. In this case, Counsel for the applicant averred that the main charge was defective and that the Appellant’s appeal has high chances of success hence warrants the Applicant to be set at liberty.

33. On the existence of exceptional or unusual circumstances it was the counsel’s contention that the Applicant was sentenced to ten (10) years and there is likelihood of the Appellant serving the same or either substantial part of the sentence before his appeal is heard and determined. Further that the Applicant’s obedience of the bond terms during trial speaks well of him and is a good indicator that it safe for him to be released on bond pending appeal.

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

35. The Appellant was sentenced to serve 10 years imprisonment under Section 215 of the Criminal Procedure Code on 1/08/2023 hence there is no likelihood of him having served a substantial part of the sentence before the proceedings are typed and the appeal 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.

36. On the aspect of demonstration of exceptional or unusual circumstances, Court observes that, the Appellant has demonstrated that he is a University of Machakos student as shown by letter from the University attached dated 6/10/2023 and copies of Campus ID in the Faculty of Commerce that would warrant consideration of the grant of bond pending appeal.

37. Further, the fact that the Applicant did not breach the bail conditions in the court below, is not in my view an exceptional circumstance which can warrant a decision to admit an Applicant to bail pending appeal.

38. In Peter Hinga Ngotho v Republic [2015] eKLR, it was held that:“The fact that the Applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant a decision to admit an Applicant to bail pending appeal.”

39. In this case the Applicant’s obedience of the bond terms during the Trial indicating it is safe for him to be released on bond pending appeal does not constitute exceptional or unusual circumstance.

40. With respect to bail pending appeal, the burden of proof is on the convicted person to demonstrate that there is an “overwhelming probability” that his or her appeal will succeed.

41. In the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR where 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.

42. In Chimambhai v Republic [1971] EA 343, the court held 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 recognizes, to an extent at one time unknown, the possibility of conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases…”

43. 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.”

44. In conclusion, this Court finds no merit in the instant application and makes the following orders:a.The application is dismissed.b.The appeal be fixed on priority basis to be heard on priority basis within 90 daysIt is so ordered.

RULING DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 8TH DAY OF NOVEMBER 2023 (PHYSICAL/VIRTUAL CONFERENCE).W.M. MUIGAIJUDGEIn the presence of:Mr. Kitindio Musembi - for the AppellantMr. Mwongera - for the RespondentGeoffrey/patrick - Court Assistant(s)