[2023] KEHC 26876 (KLR)

Okaru alias Mogaka v Repuiblic (Criminal Appeal E044 of 2023) [2023] KEHC 26876 (KLR) (11 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26876 (KLR)

Republic of Kenya

In the High Court at Migori

Criminal Appeal E044 of 2023

RPV Wendoh, J

December 11, 2023

Between

Gachaba Okaru Alias Mogaka

Appellant

and

Repuiblic

Respondent

(From original conviction and sentence by Hon. M. O. Obiero – Senior Principal Magistrate in Senior Principal Magistrate’s Court - Kehancha Sexual Offence No. E026 OF 2022 delivered on 24/07/2023)

Ruling

1. Before me is the application dated 26/7/2023 in which the applicant, Gachaba Okaru alias Mogaka seeks to be granted bail or bond pending the hearing of his appeal.

2. The appellant was convicted by the Senior Principal Magistrate Kehancha for the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act and was sentenced to thirty (30) years imprisonment on 24/7/2023. He has lodged an appeal in the High Court and claims to be fifty five (55) years old, sickly and prays to be released on Bail/ bond to enable him seek medical attention; that he was on bond during his trial and complied with all the terms and is not a flight risk. He also contends that bail / bond is a right under the law and Constitution.

3. The application was supported by the grounds found in the body of the application and supporting affidavit.

4. The application was opposed by the Respondent filing grounds of opposition which are to the effect that the appellant has not demonstrated that his appeal has high chances of success save for just stating that it has high chances of success; that the applicant has not demonstrated the existence of exceptional circumstances have been demonstrated to warrant the grant of bond; that because of the serious offence that the applicant was convicted of, and sentence imposed, the chances of how absconding are very high; that the grant of bail / bond is discretional and the applicant having been convicted, lost his right to be presumed innocent too; that public interest demands that the applicant remain in prison pending the hearing and determination of his appeal; that the sentence of thirty (30) years imprisonment is lenient considering the heinous crime the applicant committed. He urged the court to admit the appeal for hearing to be considered on priority basis, instead of releasing the applicant on bond.

5. The applicant filed further submissions in which it was submitted that on the issue of whether the appeal has high chances of success; the court will have to decide on that taking into account the grounds of appeal relied upon. Counsel also reiterated that the applicant is not a flight risk because he did not abscond during the trial. Counsel relied on the decision of Jivras Shah v Republic (1986) which laid down some of the criteria to be considered in such an application for bail pending appeal. Counsel urged that the applicant has produced in court medical records to prove his condition and he needs to be monitored closely when out in bond.

6. Counsel also submitted that there is likely to be delay in hearing of the appeal as one of the factors for grant of bail pending appeal. Counsel also relied on the decision of Chimambhai v Republic (1971) EA 343 where it was held that despite the fact that the presumption of innocence has been lost upon conviction, yet the law still recognises the possibility of the conviction being erroneous or punishment being excessive and therefore still provides for bail pending appeal.

7. The applicant also relied on Article 49 of the Constitution contending that bail is a Constitutional right. In Charles Owanga Aluoch v DPP (2015) eKLR, the Court said:-“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 application the court have over the years formulated several principles and guidelines upon which bail pending appeal is anchored.”

8. From the above decision, Article 49 (1) does not apply to an application for bail pending appeal.

9. Section 357 of the Criminal Procedure Code provides for bail / bond pending appeal. It reads as follows:-“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 applications 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 section 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.”

10. Clearly the above provisions gives the court the discretion to grant bail / bond pending appeal. The criteria upon which the court may grant bail pending appeal were discussed in the Jivray case (supra) which are 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.”

11. What amounts to exceptional circumstances varies from case to case. In Domnic Karanja v Republic (1986) KLR 612, the Court of Appeal held that the applicant’s good character or the hardships that the applicant’s family were undergoing were not exceptional circumstances. It also held that ill health per se would not constitute exceptional circumstances where there existed medical facilities for prisoners. Further in the case of Mutua v Republic (1988) KLR 497 the Court of Appeal said:“It must be remembered that an applicant for bail has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal. It is not wise to set the Applicant at liberty either from the point of view of his welfare or of the state unless there is a real reason why the court should do so”.

12. In this case, the applicant has already been convicted and sentenced to thirty (30) years imprisonment. It is immaterial that he attended court during his trial. He is now faced with thirty (30) years jail term which in my view is an incentive for the applicant to take flight.

13. The exceptional circumstances that the applicant relies upon is that he is diabetic and hypertensive. He exhibited some receipts and a report that he had had two episodes of fainting while in prison. In my view, this is not an exceptional circumstance, because I believe there are many convicts with such illnesses and they are provided with medical care. If the applicant does not take his medication, then of course he is likely to have such episodes. The court would need a more detailed report to show that the applicants’ condition is so bad that it cannot be alleviated by medications in prison.

14. As to whether the applicants are likely to serve a substantial part of the sentence, or there is likely to be delay in hearing the appeal, I doubt that will happen. Kehancha Senior Principal Magistrate’s court has no backlog on typing of proceedings. Once the proceedings are typed, the appeal will be heard.

15. In the end, I find that the application for bail/ bond pending appeal is not merited. It is declined.

DELIVERED, DATED AND SIGNED AT MIGORI THIS 11TH DAY OF DECEMBER, 2023. R. WENDOHJUDGEJudgment delivered in the presence ofMr. Kaino for the State.Appellant present in person.Emma / Phelix – Court Assistant