[2023] KEHC 26971 (KLR)

Ogise v Republic (Criminal Appeal E025 of 2022) [2023] KEHC 26971 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26971 (KLR)

Republic of Kenya

In the High Court at Nyamira

Criminal Appeal E025 of 2022

WA Okwany, J

December 14, 2023

Between

Julius Ratemo Ogise

Appellant

and

Republic

Respondent

(Being an Appeal against the Conviction and Sentence of Hon. B. M. Kimtai – PM Keroka dated and delivered on the 1st day of September 2022 in the original Keroka PMC Sexual Offence Case No. E003 of 2020})

Ruling

1. The Appellant/Applicant herein was charged and convicted for the offence of Defilement in Keroka MCSO Case No. E003 of 2020. He was sentenced to serve thirty (30) years imprisonment.

2. Aggrieved by the decision on conviction and sentence, the Appellant filed the instant appeal together with the application dated 1st March 2023 wherein he seeks to be admitted to bond/bail pending the hearing and determination of the appeal.

3. The application is supported by the Appellant’s affidavit and is premised on the following grounds: -1. That the appellant was arrested and charged with the offence of defilement contrary to section 8 (1) of the Sexual Offences Act No. 3 of 2006 at Keroka Court.2. That the appellant is a police officer and at the time of the alleged offence was serving in that capacity.3. That the appellant was sentenced for 30 years imprisonment.4. That the conviction and sentence have been appealed against by the Appellant herein.5. That the evidence adduced before court was not enough to warrant the conviction and the sentence.6. That the court failed to find that the evidence was not sufficient and also discover that it was a set up against the appellant.7. That the appellant and the family of the complainant are neighbours and above that are relate.8. That from the evidence it was clear to find that the charges as presented were malicious.9. That the court relied only on the evidence of the complainant and the father and the mother all who from the circumstances of the evidence their testimony was hearsay.10. That the appellant was not represented by an advocate in the lower court. This is a fatal error which should be put into consideration.11. That in the alternative, the appellant prays that the case goes back for a retrial.12. That the complainant from the statement of the complainant/evidence had stated that she had another sister at the home when the alleged act happened; the appellant went to their home but never called that evidence.13. That the appellant has a great case in appeal with high chances of success and pleads the court to grant the bail pending appeal.14. The Appellant is unwell and urgently requests that he may be allowed to attend to a doctor/hospital of his choice if granted bond.

4. The Republic/Respondent opposed the application through the replying affidavit of Mr. Joel Kibet Chirchir, an Advocate in the Office of the Director of Public Prosecution who avers that the Applicant has not disclosed any peculiar or exceptional circumstances that would warrant his release on bond pending appeal. He states that the Applicant has so far served only one (1) year and one (1) month out of his 30 years sentence period and cannot therefore claim that he is likely to serve a substantial part of the sentence by the time the appeal is heard and determined.

5. It is the Respondent’s case that the appeal does not have overwhelming chances of success and that the Applicant’s chances of absconding from court are high owing to the length of his sentence.

6. The Applicant canvassed the appeal by way of written submissions while the Respondent opted to rely on the averments contained in the Replying Affidavit.

7. Article 49(1)(h) of the Constitution provides that: -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 the case of Charles Owanga Aluoch vs Director of Public Prosecutions [2015] eKLR 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.”

9. In Dominic Karanja vs Republic (1986) KLR 612 the Court of Appeal 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)…………..”

10. I have considered the above decisions which reveal that the court has the discretion to grant bail pending appeal. The discretion must however be exercised judiciously.

11. In an application for bail pending appeal, the burden rests on the Applicant to demonstrate that the appeal has high chances of success or that there is a high likelihood that he will serve a substantial part of the sentence before the appeal is heard and determined.

12. In the present case, I note that the Record of Appeal has not been filed even though the Lower Court file has been availed before this court. I note that the typed proceedings and judgment of the Lower Court are in the Lower Court file and that nothing stands in the way of the Applicant in as far as filing of the Record of Appeal and fast tracking the hearing of the appeal is concerned.

13. I have perused the grounds of appeal and the Lower Court record. I am of the view that while the appeal appears arguable, it will be premature to determine the viability of the appeal at this stage.

14. As I have already stated in this ruling, the Applicant was sentenced to serve thirty (30) years imprisonment. He has so far served one (1) year out of his thirty (30) years prison term. I therefore find that there is no likelihood that he would have served a substantial part of the sentence before the appeal is heard. It is to be noted that the current court policy is to expedite the disposal of cases which means that the is no possibility of delay in hearing the appeal.

15. The court also observes that even though the Applicant claimed that he is ailing and urgently requires medical attention, no material was placed before the court to show that the Applicant is unwell.

16. In sum, I find that the application does not meet the threshold of the circumstances under which bail pending appeal may be granted.

17. Consequently, I find that the application is not merited and I therefore dismiss it and direct the Appellant to expedite the filing of the Record of Appeal so that the appeal can be admitted and listed for hearing. Mention on 20th March 2024.

18. It is so ordered.

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