[2023] KEHC 24569 (KLR)

Njenga v Republic (Criminal Appeal E096 of 2022) [2023] KEHC 24569 (KLR) (13 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24569 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E096 of 2022

A. Ong’injo, J

October 13, 2023

Between

Fredrick Mungai Njenga

Appellant

and

Republic

Respondent

Ruling

1. The Notice of Motion application dated July 17, 2023 was brought under article 22 of the Constitution of Kenya 2010, section 357 of the Criminal Procedure Code cap 75 Laws of Kenya and inherent powers and jurisdiction of the honourable court and all other enabling provisions of law seeking for orders that the Honourable Court be pleased to admit the appellant to bail pending the hearing and determination of the appeal in such terms as the court may deem fit, appropriate and expedient in the circumstances.

2. The application is premised on grounds that he might serve sentence before the appeal is heard and that the appeal has high probability of success. That the applicant is not a flight risk and shall abide by the bond terms and should be presumed innocent until proven guilty. The applicant also argued that irreparable damage and loss shall be suffered and that such loss cannot be compensated by an award of damages.

3. The application was also supported by an affidavit of Fredrick Mungai Njenga, the applicant sworn on 17th July 2023 reiterating the grounds on the body of the application including averments that he was on bond during trial and did not abscond court and that he is a family man hence the sole breadwinner of his family.

4. The application was served upon the Respondent and Ms. Anyumba for the Respondent filed grounds of opposition dated 31st July 2023 in which it was argued that the applicant had not demonstrated any peculiar or exceptional circumstances to warrant grant of the orders sought. She also contended that the applicant had not shown overwhelming chances of the appeal being successful and there was no likelihood of delay in hearing the appeal.

Analysis and Determination 5. This court has considered the notice of motion application dated 17th July 2023 and the Grounds of Opposition dated 31st July 2023, and the issue for determination is whether the applicant has satisfied the court for grant of the order of bail pending appeal.

6. Article 50(2)(q) of the Constitution provides that: -An accused person has the right …(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

7. Section 357 of the Criminal Procedure Code provides: -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.2. If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.3. The Chief Justice may make rules of court to regulate the procedure in cases under this section.

8. 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.”

9. This court agrees with the position 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. In the case of Jiv Raji Shah vs. R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated 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.”

10. The Court of Appeal in the case of Dominic Karanja v Republic (1986) KLR 612 stated that: -“(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)…………..”

11. This court has considered the constitutional and statutory right to appeal on conviction as well as the decisions above to the effect 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.

12. Having perused the proceedings in the lower court and the judgment of the trial magistrate, this court finds that it has not been shown that the appeal has overwhelming chances of success. The applicant was sentenced on 16th December 2022 for 7 years in prison and this appeal was filed on 22nd December 2022. If the appeal had been pursued, it could have been concluded by now. Mention on 31. 10. 2023 to confirm record of appeal has been supplied to take directions.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 13TH DAY OF OCTOBER 2023. HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for RespondentMr. Mwanzia Advocate H/B for Mr. Mukanzi Advocate for the appellantAppellant present in personHON. LADY JUSTICE A. ONG’INJOJUDGE