[2023] KEHC 23068 (KLR)

Njunge v Director of Public Prosecution (Criminal Appeal E022 of 2021) [2023] KEHC 23068 (KLR) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23068 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Appeal E022 of 2021

PM Mulwa, J

October 5, 2023

Between

Patrick Mwaniki Njunge

Appellant

and

Director of Public Prosecution

Respondent

Ruling

1. The appellant herein, Patrick Mwaniki Njunge has moved the court by a Notice of Motion application dated 1st February 2023, where he seeks to be admitted on bail pending hearing and determination of the appeal.

2. The gist of the application is that the convict was sentenced on 20th January 2021, and has been in custody since then. That during the trial at the lower court, the appellant was out on bond and adhered to the bond terms and attended court without fail. That he is ready to abide by the bail terms to be set. And that since the filing of the appeal the same has not taken off and neither have directions been issued.

3. The application was not opposed by the prosecution counsel.

4. From the record the appellant together with another were charged with two counts of the offence of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code. The particulars were that on 19th January 2017, at Mutarakwa Center within Kiambu county, jointly with others not before court robbed Francis Ndungu Mburu and Jackline Wanjiku and immediately at the time of such robbery wounded the said Francis Ndungu Mburu and Jackline Wanjiku.

5. After a full hearing the trial court found the appellant and his co-accused guilty of the offence and convicted on 20th January 2021. The appellant was sentenced to serve 20 years in prison.

6. Article 49(1)(h) of the Constitutionprovides 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.

7. In the case of Dominic Karanja v Republic (1986) KLR 612 the court 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.”

8. The principles of granting bail/bond pending appeal that were laid down in the case of Jivraj Shah vs Republic (1986) eKLR, thus;i.There must be in existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail.ii.If it appears prima facie 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.

9. This court is clothed with the discretion to grant bail pending appeal, which discretion should be exercised judiciously. The applicant has the burden of establishing that the appeal has a high chance of success or there is a high likelihood of serving a substantial part of the sentence before hearing the appeal.

10. The Applicant was sentenced on 20th January 2021, to 20 years imprisonment. He has been in custody since then but was out on bail during trial. In the circumstances, there is no likelihood of him having served a substantial part of the sentence before the appeal is heard.

11. The applicant avers that the appeal has taken too long to start, that he did abide by the bail terms in the trial court and that he is willing to abide by the bond/bail terms pending trial. I find that his assertion does not amount to exceptional or unusual circumstances.

12. I find no merit in the application for bail pending appeal and the same is dismissed.It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF OCTOBER 2023. .................................P.M. MULWAJUDGEIn the presence of:Kinyua/ Duale – Court assistantMr. Ngigi - for the ApplicantMr. Gacharia - for the RespondentApplicant – present from Kamiti Maximum prison