[2022] KEHC 16152 (KLR)

Onsongo v Republic (Criminal Appeal E046 of 2022) [2022] KEHC 16152 (KLR) (Crim) (6 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16152 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E046 of 2022

JM Bwonwong'a, J

December 6, 2022

Between

Wilfred Ombati Onsongo

Applicant

and

Republic

Respondent

(Being an application for bail pending appeal of the judgement, conviction, and sentence of death delivered by Hon.Gandani, (C.M) on 15th December 2021 in Kibera Chief Magistrate’s Court, in Criminal Case No. 1087 of 2016 Republic vs Wilfred Ombati Onsongo)

Ruling

1. The applicant was charged with the offence of robbery with violence contrary to section 296 (2) of thePenal Code(cap 63), Laws of Kenya. He pleaded not guilty and was tried, found guilty and convicted.He was sentenced to death.

2. Being dissatisfied with the decision, he filed this petition of appeal.

3. Simultaneously, he filed this application seeking his release on reasonable bail/bond pending the hearing and determination of his appeal.He has also sought the costs of this application.

4. The application is premised on the grounds set out on the face of the the notice of motion and is supported by an affidavit dated June 13, 2022 which is sworn by the applicant.

5. The grounds in support of the application are as follows. The appeal has overwhelming chances of success. The applicant is a law-abiding citizen and prior to his conviction, he had been granted bail terms by the trial court, which he complied with. He is not a flight risk and has a fixed place of abode, a family and a permanent residence within the Republic of Kenya. Further that he will abide by all the conditions that the court may impose.

6. Additionally, he is the sole breadwinner of his family and he has a heavily expectant wife, who is unemployed and cannot continue to depend on the welfare of the community to provide for the needs of his family. He is not at risk of being attacked or killed by anybody, because he has always been at peace with his neighbours. He is unlikely to jump bail as he is concerned about the welfare of his family, who solely depend on him.

The Applicant’s Written Submissions 7. Mr Orina, learned counsel for the applicant submitted that the applicant was convicted purely based on extraneous issues and conjecture. Further, that the trial court misapprehended the facts, applied wrong principles of law, and failed to consider issues that were brought out in the evidence of the defence. He was convicted and sentenced to the mandatory death sentence without considering his mitigation. His appeal has therefore good chances of success on account of substantial points of law and facts to be argued.

8. He further submitted that the applicant is of good character. He is the breadwinner of his family and he co-operated with the court in having the matter determined in good time. That he shall not abscond and shall ensure that he complies with terms that the court may impose for his release.

The Respondent’s Written Submissions 9. Ms Joyce Adhiambo, learned prosecution counsel for the respondent submitted that the applicant has not demonstrated any exceptional circumstances to be granted bail pending appeal. The fact that he has a wife, who is heavily pregnant is not an exceptional circumstance to warrant the grant of bail/bond pending appeal.

10. Secondly, on whether the appeal has high chances of success, learned prosecution counsel submitted that the nature of the offence committed and the weight of evidence adduced will require a thorough evaluation by the court upon appeal to make a concrete decision.

11. Counsel also argued that the applicant has not met the threshold to be released on bail pending appeal.

Issues for determination 12. I have considered the application and the rival submissions by the parties.

13. As a result, I find that the issue For Determination that arises is whether the applicant has met the threshold for the grant of bail pending the hearing and determination of his appeal.

Analysis and determination. 14. The provision of law that applies to bail pending appeal is section 357 of the Criminal Procedure Code (cap 75) Laws of Kenya, which provides 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;”

15. The principles applicable in considering whether to grant bail pending an appeal are set out in the case of Jivraj Shah v Republic [1986] KLR 605, which laid down the following principles:“(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.”

16. In the case of Chimambhai v Republic1971 EA 343 the court (Harris, J) observed that in such an application:“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……..”

17. Under article 49 of the Constitution of Kenyaan accused person who is facing a criminal charge has a right to bail/bond, because he is presumed to be innocent till proved guilty, unlike a case where one is already convicted. Where an accused has been convicted the presumption of innocence is no longer application to his case.

18. I have carefully examined the grounds of appeal raised by the applicant. The applicant submits that the appeal herein has a high chance of success and one need only peruse the judgment and the petition of appeal to conclude that his submission is not correct.

19. The rationale for considering the chances of success of the appeal were set out in Somo v R[1972] EA 480, in which the court observed as follows:“There is little if any point in granting the application if the appeal is not thought to have an overwhelming chance of being successful, at least to the extent that the sentence will be interfered with so that the applicant will be granted his liberty by the appeal court. I have used the word "overwhelming" deliberately for what I believe to be a good reason. It seems to me that when these applications are considered it must never be forgotten that the presumption is that when the applicant was convicted, he was properly convicted. That is why, where he is undergoing a custodial sentence, he must demonstrate, if he wishes to anticipate the result of his appeal and secure his liberty forthwith, that there are exceptional or unusual circumstances in the case. That is why, when he relies on the ground that his appeal will prove successful, he must show that there is an overwhelming probability that it will succeed."

20. In this case, I have considered the eight grounds of appeal raised in the petition of appeal. However, I am not satisfied that the said grounds disclose the existence of an appeal with overwhelming chances of success. Whereas the applicant may succeed in arguing the said grounds at the hearing of the appeal, I am not satisfied that the chances of the appeal succeeding are overwhelming. The grounds are the usual grounds and no ground stands out as one that is very likely to succeed even before the same is argued based on the evidence adduced.

21. As regards exceptional circumstances, the applicant argued that his wife is heavily expectant and he is the sole breadwinner of his family and as such he should be released on bail/bond pending appeal. However, these are matters that do not constitute unusual or exceptional circumstances that warrant his release on bail pending appeal.

22. The applicant also argued that if released on bail he would not abscond. The fact that the applicant had been released on bail/bond during his trial and did not abscond or faithfully attended court is not a ground to release him on bail pending appeal. In Dominic Karanja v Republic [1986] KLR 612, the court held that: -“(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;”

23. The upshot of the analysis is that the applicant has not demonstrated that his appeal has high chances of success.

24. He has also not demonstrated the existence of exceptional or unusual circumstances in his appeal to warrant his release on bail pending the hearing and determination of his appeal.The applicant’s application fails and is hereby dismissed.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 6TH DAY OF DECEMBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMs. Matoke holding brief for Mr. Orina for the applicantMr. Otieno for the respondent