[2023] KEHC 26900 (KLR)

Njau v Republic (Miscellaneous Criminal Application E025 of 2023) [2023] KEHC 26900 (KLR) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 26900 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Criminal Application E025 of 2023

DO Chepkwony, J

October 5, 2023

Between

Augustine Kiarie Njau

Applicant

and

Republic

Respondent

Ruling

1. The Applicant, Augustine Kiarie Njau was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. In the alternative, the Applicant was charged with the offence of Committing an Indecent Act with a Child contrary to Section 11 of the Sexual Offences Act No.3 of 2006.

2. After a full trial, the Applicant was found guilty of the offence of Defilement contrary to Section 8(1) of the Sexual Offences Act for which he was convicted and sentenced to serve a life imprisonment contrary to Section 8(3) of the Sexual Offences Act.

3. The Appellant/Applicant has filed an application vide a Notice of Motion dated 7th May, 2023 in which he seeks release on bail/bond pending appeal on the following terms:-a.That the circumstances under which life imprisonment sentence was meted against him are unjust and questionable.b.That he is suffering greatly and has a young family that he has to provide for.

4. In response, the prosecution/Respondent has opposed the said application vide a Replying Affidavit sworn by Hellen Ngesa, Senior Prosecution Counsel on 23rd June, 2023. According to the prosecution’s counsel, the application is vexatious and a abuse of the court process as it does not demonstrate proper legal grounds for the Applicant to be granted release on bail/bond pending appeal. The prosecution’s counsel states that the Applicant having been convicted and sentenced to serve a life imprisonment, his innocence has been compromised and as such his right to release on bail pending appeal is not automatic as that of an accused release on bail/bond pending trial under Article 49(1) (h) of the Constitution. She urged that the application be dismissed since the evidence adduced before the trial court that led to his conviction and sentence was cogent hence the desire for the Applicant to jump bail is high.

5. The parties were directed to canvass the application dated 18th May, 2023 by way of written submissions. As at the time of writing this ruling only the Respondent had filed their submissions on 23rd June, 2023.

6. This court has carefully considered the prayer in the application by reading through the affidavits sworn by the parties in support and opposition thereof respectively alongside the written submissions filed by the Respondent. What crystalizes for determination is whether the Applicant has satisfied the threshold set for one to be granted release on bail pending appeal. The enabling legal provisions on application for bail pending appeal is Section 357 of the Criminal Procedure Code which states:-“(357)Admission to bail or suspension of sentence pending appeal-“(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:Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in Sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.”

7. In view of this, it is clear that this court is mandated to grant bail pending the determination of the appeal. However, it should be appreciated that the same is not an absolute right and cannot be guaranteed as is the case to bail pending the hearing of a trial. This is because, the right of an accused to be released on bail/bond pending trial as provided for under Article 49(1)(h) of the Constitution is premised on a constitutional right of presumption of innocent. Article 49(1)(h) provides as follows:-An accused person has the right ...(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.

8. In a case where one has already been convicted and sentence passed, a party is presumed to be serving a legal punishment which must be executed in accordance with the law unless there exist unusual and exceptional circumstances. In the case of John Steven Lubele v Republic, Misc. Appl. No.36 of 2022 (Tanzania) the Judge in adopting decisions fro Kenya has this to say in this regard:-“... where innocence has been rightly rebutted by a court of competent jurisdiction, is a matter of principle the bail right to a convicted person pursuing his appeal is more of a privilege than such right guaranteed by the Constitution and other instruments of Human Rights. Therefore, it must be exercised with great caution”

9. Therefore, whether or not to grant a party release on bail/bond pending determination of an appeal is in the discretion of a court and must be exercised judiciously by balancing the interests of both the Applicant as an individual and those of the public/community.

10. The basic conditions to be considered in granting bail/bond pending appeal were set out in the case of Lawrence Mateso v Republic [1996]TLR 118 as follows:-a.That bail pending appeal is the discretion of the court.b.On deciding whether to grant or not, the court must balance the liberty of the individual with proper administration of justice.c.That the Applicant must prove beyond reasonable doubt that justice will not be jeopardized by his liberty and there are unusual and exceptional reasons for granting bail.d.That the appeal has an overwhelming change of success.

11. In the case of Chimambhai v Republic (No.2)[1971] EA 343 at 345, the court stated:-“The case of an Appellant under sentence of imprisonment seeking bail lacks one of the strongest locally available to an accused person seeking bail before trial, mainly the presumption of innocence, but nevertheless the law of finding frankly miugress to an extend at the time unknown, the possibility of the conviction being erroneous or punishment excessive ....”

12. And in the Court of Appeal of Kenya in the case of Jivraj Shah v- Republic [1986]eKLR states:-“The principle 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 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.”

13. In a 1958 decision in the case of Raghbar Singh Lamba v Republic [1958] 1EA 337 at Page 338, the High Court of Tanganyika stated that:-“Where a person is awaiting trial, the onus of proving his guilt is on the prosecution and consequently, the onus is also on the prosecution of showing cause why bail should not be allowed. On the other hand, when a person has been convicted, the onus is on him to show cause why the conviction should be set aside and similarly the onus is on him to show cause why as a convicted person he should be released on bail. If that is so, it follows that the reasons must be exceptional, otherwise bail would be granted in the majority of cases, which would clearly offend against the principle”

14. The reason for bringing out all the above cited decisions so as to distinguish the circumstances that are considered by the court in granting bail pending trial and bail pending determinations of an appeal.

15. In the instant case, the main reasons advanced by the Applicant in seeking release on bail/bond pending the determination of this appeal are mainly that he was sentenced under unjust and questionable circumstances, and that he is suffering and his young family is in financial distress due to the incarceration. This court finds that the first reason would reasonably be considered as a ground of appeal, which it finds has not been substantiated by the Applicant at this stage, hence the arguability that the appeal is standing an overwhelming chance of success is yet to be established.

16. As for his suffering and his family being in financial distress is a ground that can be dealt with by ensuring the hearing and determination of this appeal is expedited. This is because in considering the nature of the offence for which he was convicted and sentenced, being a sexual offence, the Applicant’s interest cannot surpass the public interest, hence cannot pass the test of exceptional circumstances.

17. Therefore, this court having found that the Applicant has not demonstrated that the appeal has a high chance of success and or that there exist exceptional circumstances to warrant grant him release on bail/bond pending appeal, the Chamber Summons application dated 18th May, 2023 is found to be without merit and is hereby dismissed.

18. The following directions are hereby issued to enable the expeditious hearing and determination of the appeal:-a.The Deputy Registrar of this court to call upon and avail the original record of proceedings in Thika S.O. Case No.35 of 2015, Republic v Augustine Kiarie Njau to enable a Record of Appeal be compiled and served upon the parties.b.Mention before the Deputy Registrar on 13th November, 2023 for parties to confirm the filing of the Record of Appeal and take directions on hearing of the appeal.c.Notice to issue upon the parties and or respective counsel.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF OCTOBER , 2023. D. O. CHEPKWONYJUDGEIn the presence of:-M/S Ngesa counsel for the StateApplicant in personAccused – presentCourt Assistant - Martin