[2023] KEHC 26569 (KLR)

Nyang'au v Republic (Criminal Appeal E026 of 2023) [2023] KEHC 26569 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26569 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Appeal E026 of 2023

WA Okwany, J

December 14, 2023

Between

Mesa Kabese Nyang'au

Appellant

and

Republic

Respondent

Ruling

1. The applicant/appellant herein was charged with the offence of assault causing actual bodily harm contrary to section 251 of the Penal Code. The particulars of the charge were that on the 13th day of December 2019 at Boisanga II sub-location in Nyamira North sub-County within Nyamira County, unlawfully assaulted Zacharia Mong’are thereby occasioning him actual bodily harm.

2. The Applicant was also charged with a second count of causing malicious damage to property contrary to section 339(1) of the Penal Code. The particulars were that on December 13, 2019 and December 15, 2019 Boisanga II sub-location in Nyamira North sub-County within Nyamira County, wilfully and unlawfully destroyed the dwelling house and household goods valued at Kshs. 200,000/=, the property of Zacharia Mong’are. He was convicted on both counts and sentenced as follows: -Count 1- To pay compensation to the Complainant in the sum of Kshs. 20,000/= of in default to serve 1-year imprisonment.Count 2 – To pay compensation to the Complainant in the sum of Kshs. 100,000/= of in default to serve 2 years’ imprisonment.Both sentences to run concurrently.

3. The appellant filed the application dated June 28, 2023 under section 357 of the Criminal Procedure Code and article 49(1) (h) of the Constitution of Kenya seeking, inter alia, his release on bond pending the hearing and determination of this Appeal.

4. The application is supported by the applicant’s affidavit and is premised on the ground that the Applicant has filed a notice of appeal which appeal has high chances of success. The applicant contends that that he is an elderly man aged 68 years and that he religiously attended court during the hearing before the trial court. He further states that he is ready to reconcile with his son who is the complainant in this case

5. The Respondent opposed the application through the replying affidavit of Prosecution Counsel, Mr. Chirchir, who states that the Applicant has not demonstrated any exceptional circumstances that would warrant his release on bond pending appeal. Mr. Chirchir noted that the Applicant had served only 4 months out of his 2 years prison term. It was further, the Respondent’s case that the Applicant’s innocence compromised upon his conviction and that article 49(1) (h) of the Constitution was therefore not applicable to him. It was submitted that the intended appeal did not have overwhelming chances of success.

6. This application was canvassed by way of oral submissions which I have considered. The main issue for determination is whether the Application is merited.

7. Bail pending appeal is provided for under section 357 of the Criminal Procedure Code which states 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.”

8. The principles governing the granting of bail pending appeal were outlined in the case of Jivraj Shah v Republic (1986) eKLR 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.”

9. The right to bail is provided for under article 49 of the Constitution which provides that:-49. Rights of arrested persons(1)An arrested 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.

10. This right to bail is premised on the principle of presumption that an accused person is innocent until proven guilty. Bond is therefore only available to persons who are yet to be convicted. This Court takes cognizance of the fact that after conviction, the presumption of innocence no longer stands. This position was stated in Chimambhai v Republic (1971) EA 343 where the court held thus: -“The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”

11. The right to bail pending appeal it is not an absolute right because a person seeking such a prayer has already been tried and convicted by a court of competent jurisdiction. The appellate Court must therefore consider, with close circumspection, the circumstances of the Application before interfering with the trial court’s exercise of discretion in convicting and sentencing the Applicant.

12. In order to succeed in an application for bond pending appeal, an Applicant must satisfy the three conditions outlined in the case of Jivraj Shah case (supra).

13. It was the applicant’s case that he is aged and craves for an opportunity to reconcile with the complainant who is his son. He also averred that his appeal has overwhelming chances of success.

14. The Bailand Bond Policy Guidelines at page 27 paragraph 4. 30 state that it is the burden rests on the convicted person to demonstrate that his appeal has overwhelming chances of success.

15. I have perused the Record of Appeal and I note that there is no evidence to show that the trial Magistrate did not apply the law in arriving at a conviction against the Applicant and in meting out the sentence. The record reveals that parties attempted alternative dispute resolution methods in vain as it emerged that the Applicant did not abide by terms of their agreement.

16. The Applicant also stated that he had religiously attended court and co-operated with the police. This assertion is however not proof of exceptional circumstances to be considered in granting bail pending appeal. I am guided by the decision by the Court of Appeal in the case of Dominic Karanja v Republic (1986) KLR 612 where it was held 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)…………..”

17. For the foregoing reasons, I find that the instant application does not meet the threshold set for the granting of bail pending appeal as outlined in the case of Jivraj Shah (supra). Consequently, I dismiss the application and direct that directions be taken on the appeal so that it can be listed for hearing in view of the fact that the Record of Appeal has already been filed.

18. Orders accordingly.

RULING, DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 14TH DAY OF DECEMBER 2023. W. A. OKWANYJUDGE