[2022] KEHC 16597 (KLR)

Nganga & another v Republic (Criminal Revision E028 & E022 of 2022 (Consolidated)) [2022] KEHC 16597 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16597 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Revision E028 & E022 of 2022 (Consolidated)

MW Muigai, J

December 15, 2022

Between

George Wambura Nganga

1st Applicant

David Macharia Gachoka

2nd Applicant

and

Republic

Respondent

Ruling

Court Record 1. The appellants were charged with the offence of stock theft contrary to section 278 of the Penal Code.

2. The particulars of the offence are that on the night of October 29, 2018 at Syokimau area of Mlolongo township in Athi River Sub- County within Machakos County they stole eleven (11) bulls valued at Kshs 880,000 the property of Jackson Kireria Matura and ferried them using motor vehicle registration number KBG 673 U make Isuzu FSR white in colour.

3. The appellants pleaded not guilty and the matter proceeded to full hearing.

4. At the conclusion of the trial, they were found guilty as charged on April 27, 2022 and sentenced to 5 years imprisonment without an option of a fine each

5. There is a petition of appeal filed on May 10, 2022 on record that is yet to be determined.

The Application 6. Before this court is a notice of motion application dated July 15, 2022 brought under Article 159, 48 & 50 ofthe Constitution of Kenya, 2020 and section 123, 124 and 125 of the Criminal Procedure Code seeking an order for the appellant to be set free on bond or cash bail pending the hearing and determination of the appeal before the court.

7. The Application is supported by the Affidavit of George Wambura Ng’ang’a & David Macharia Gachoka sworn on an even date in which they deponed that the being dissatisfied with the judgment and conviction in Mavoko Criminal Case No 362 of 2021 have appealed and are hopeful that there is a high probability of success of the appeals before the court. They contended that they are not likely to abscond from attending trial and are not flight risks whatsoever. Further, they are not likely to commit or abet the commission of a serious offence against the laws of the state. They opined that they are men of proper morals and good reputation and not likely to commit crime nor likely to endanger the safety of the victims, individuals or the public.

8. They deponed that they are not likely to endanger public security or public interest, that the offence is not a capital offence but rather a bailable offence. They were out on bail during the proceedings of the matter at the Chief Magistrate Court in Mavoko and faithfully attended court. They contended that it was within their constitutional rights to be granted cash bail or bond unless there are compelling reasons and that the State will suffer no prejudice if the application is allowed. Lastly, they indicated that if the orders sought are not granted they would continue to suffer.

Replying Affidavit 9. The ODPP in opposition of the applications filed a replying affidavit dated December 7, 2022 sworn by Martin Mwongera, prosecution counsel. He deposes that the appellants have not demonstrated that the appeals have any chance of success and that assertion can only be proved at and upon the full hearing of the appeals. It was contended that the grounds that the appeals have high chances of success is misconceived, unmerited and premature and therefore bail pending appeal applications should not be granted. He opined that the solemn assertion that the applicants will not abscond if released on bond even if it is supported by sureties is not sufficient ground for releasing convicted persons on bail pending Appeal. Counsel contended that the application lacks merit and should be dismissed in its entirety.

10. The application was disposed off by way of written submissions.

Appellant/ Applicant Submissions 11. The appellant submissions were filed on December 6, 2022 in which the contents of the supporting affidavit were reiterated and it was further submitted that they have already proved that they are not going to abuse being out on bond in any way. That in the trial court, they were out on a cash bail of Kshs 100,000 and never absconded court or interfered with the witnesses or proceedings of the matter while they were out on cash bail.

12. While citing Article 49 (1) (h) of the Constitution, it was submitted that the appellant had a right to bail pending determination of his case unless there were compelling reasons. Further reliance was placed on section 123 A of the Criminal Procedure Code and theBail Bond policy guidelines paragraph 4. 9 that provides a a general guideline on bail that;“in terms of substance, the primary factor considered by the courts in bail decision making is whether the accused will appear for trial if granted bail. A particular challenge the courts face since the promulgation of the Constitution is determining the existence of compelling reasons for denying an accused person bail particularly in serious offences.”

13. It was submitted that the appellant had health issues but counsel was yet to be furnished with a copy of the medical report. The court was asked to access and assess the medical report from the prison where the appellant is held. It was submitted that the appellant had a young family where he is the breadwinner as the wife is a housewife and the family has continued to suffer. The children are at a point where life is so difficult for them since the wife is not on a position to provide the bare minimum basic needs. This point was supported by the case of Cyril Kipruto Serem vs Republic (2020) e KLR.

14. On the issue of probability of success, it was submitted that on top of adopting the entire memorandum of appeal, that the court did not call key witnesses, there was no identification parade noting that the police already made an arrest of a different person sharing similar names with the appellant herein before arresting the appellant, the appellant was not furnished with the statements to be relied upon, no exhibit was provided and no single witness was able to describe the alleged stolen bulls, not even the colour of one bull. The appellant prayed for a reasonable cash bail.

Respondent Submissions 15. The respondent filed submissions on December 8, 2022 in which it was submitted while relying on section 357 (1) of the Criminal Procedure Code and Jivraj Shah v Republic[1986] KLR 605 that the assertion that the appeal has high chances of success can only be proved at an upon full hearing of the appeal. He reiterated the contents of the replying affidavit and asked the court to dismiss the application.

Determination 16. I have considered the application, the court record and the submission of the parties herein.

17. 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”

18. The principles for granting bond pending appeal are well set out in the case ofJivraj Shah v Republic [1986]eKLR which include;“(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.”

19. The Court of Appeal in the case of Dominic Karanja v Republic (1986) e KLR stated as follows;“The most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty. The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicant and the hardship, if any, facing the wife and children of the applicant are not exceptional or unusual factors: see Somo v Republic [1972] E A 476. A solemn assertion by an applicant that he will not abscond if he is released is not sufficient ground, even with support of sureties, for releasing a convicted person on bail pending appeal.”

20. The Supreme Court of Zambia in the case ofKrishnan v The People[2011] ZMSC 19 held that;i.An application for bail pending appeal before the Supreme Court ought to brought under section 332(1) of theCriminal Procedure Code, and not section 123 of the said Code.ii.It is settled law that bail is granted at the discretion of the court.iii.For bail pending appeal to be granted, the court must be satisfied that there are exceptional circumstances that are disclosed in the application.iv.The fact that the appellant due to delay in determining his appeal May, have served a substantial part of his sentence by the time his appeal is heard, is one such exceptional circumstance. Each case is considered on its merits, depending on what May, be presented as exceptional circumstances.v.It is important to bear in mind that in an application for bail pending appeal, the court is dealing with a convict, and sufficient reasons must therefore exist before such a convict can be released on bail pending appeal.vi.The decision in Stoddart v The Queen is still good law. And is quite instructive as to the principles applicable in applications for bail pending appeal.vii.It is not for the court to delve into the merits of each ground. But it suffices that all the grounds are examined, and a conclusion is made that prima facie the prospects of success of the appeal are dim.viii.The fact that an applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant to admit an applicant to bail pending appeal.ix.While it is a fact that the Supreme Court has a heavy work load in civil and criminal cases, it is possible for the appellant's case to be heard within a reasonable time.x.Taking into consideration that criminal appeals are being disposed of at a fast rate by the Supreme Court, it is unlikely that the appellant would serve a substantial remainder of his sentence, and that he would serve the full sentence before his appeal is determined.xi.In terms of section 332(1) of the Criminal Procedure Code, the option therefore for a person who has not been released on bail pending appeal is to make a request to have the execution of his sentence suspended pending the hearing of his appeal. In fact, the provision makes it clear that refusal of bail precedes the request for suspension of execution of a sentence.xii.section 332(1) of the Criminal Procedure Code states that upon refusal of the application for bail, a request for suspension of a sentence should be made by the appellant.1. The question is what then determines that an appeal has high chances of success. The answer is found in the Bail and Bond policy guidelines paragraph 4. 30 that provides that;“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.”

22. The appellant argues that he has right to bail under Article 49 of the Constitution however I note that under this Article, an accused person who is facing a criminal charge has a right to bond because he is presumed to be innocent till proved guilty, unlike this case where one is already convicted.

23. 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. Previous good character of the applicant and the hardships if any facing his family are not exceptional or unusual circumstances as highlighted above and neither is the fact the appellant did not breach the bail terms in the trial court. I also note that the appellant has not provided any evidence of his ill health as alleged.

24. The appellant contends that they always attended court in the lower court when they were out on a cash bail of Kshs 100,000/ each. This court has perused the trial court record and notes that the proceedings in the trial court are not in tandem with the judgment of the court. The record does not appear to be clear on the appellants contention and therefore it is hard for this court to arrive at a just conclusion as to the true position of the filed appeals. In the proceedings of the Criminal Case No 751 of 2018 the names of the accused person are as follows: (1) Mutende Meibako Silalo (2) Boniface Ntinyinya Serereka, (3) Parmuat Oletopoti, (4) Peter Osoro Okubo and Kashu Oile Parmeres while in the judgment of the same file the accused persons are as follows: (1) David Macharia Gachoka, (2) George Wambura Nganga, (3) Francis Thiani Ndungu, (4) Mutende Meibako Silalo and (5) Kashu Oile Parameres.

25. The judgment in the trial court was entered on April 27, 2022 and this court finds that these appeals will be determined within reasonable time by which time the sentence will not have been substantially served.

26. To this extent, the applications fails and are dismissed.

27. The hearing of the appeals shall be expedited.

28It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT MACHAKOS THIS 15TH DAY OF DECEMBER 2022 (VIRTUAL/PHYSICAL CONFERENCE).M. W. MUIGAIJUDGEIN THE PRESENCE OF:Mr. Kimathi- for the 1st AppellantDavid Macharia Gachoka 2nd Appellant in personMwongera - for the RespondentGeoffrey/Patrick - Court Assistant(s)