[2019] KEHC 6068 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 13 OF 2019

PAULINE RUGURU KITHUMBU................APPELLANT/APPLICANT

VERSUS

REPUBLIC............................................................................RESPONDENT

R U L I N G

A. Introduction

1. This is a ruling for the application dated 9th April 2019 seeking for orders for release on bail pending appeal.

2. The applicant herein was charged and convicted of the offence of carrying out restricted activities involving endangered species contrary to Section 48 (1) as read with section 92 and the sixth schedule (E) of the Wildlife Conservation and Management Act 2013 and sentenced to two (2) years imprisonment. Being dissatisfied with the trial court’s judgment, the applicant filed this appeal dated 9th April 2019.

B. Applicant’s Submission

3. It is the applicant’s case and submission that her application ought to be allowed as she has appealed against the conviction and sentence imposed on her by the trial court. It is further submitted that the offence the applicant was convicted of is bailable and that she had been granted bond of Kshs. 200,000/= plus one surety during trial whose conditions she complied with.

4. The applicant further submits that she is a mother to four (4) minors with the last born aged 1½ years and had to stop breastfeeding as a result of her imprisonment. She further states that this matter amounts to a special circumstance that warrants her release on bail pending appeal. She further submits that the respondent has not raised any compelling reasons to warrant her denial of the bail pending appeal.

C. Respondent’s Submission

5. The respondent opposed the application and submits that the Bail and Bond Policy Guidelines at page 27 paragraph 4. 30 provide that the burden is on the convicted person to demonstrate that there is an overwhelming probability that his or her appeal will succeed. The respondent relied on Embu High Court Criminal Appeal 52 of 2017, a similar application before this court in which this court expressed itself that bail pending appeal was not a constitutional right of the accused as she had lost the presumption of innocence as she had been convicted.

6. The prosecution further submitted that the punitive purpose that the sentence was meant to serve would be defeated if the applicant was released on bail pending appeal. It was further submitted that the fact that the applicant was a mother did not in itself amount to an exceptional or unusual circumstance to warrant granting of bail pending appeal as was envisioned in the case of Jivraj Shah v Republic [1986] KLR 605in which the court cited the conditions for grant of bail pending appeal.

7. They also relied on the case of Dominic Karanja v Republic [1986] KLR 612 in which the court held that a solemn assertion by an applicant that he would not abscond if released, even if supported by sureties, was not sufficient ground for releasing a convicted person on bond pending trial.

D. Analysis of the Law

8. I have considered the pleadings and submissions by the Applicant and Prosecution. The provision of law that applies to bond/bail pending appeal is section 357 of the Criminal Procedure Code 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:

Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application 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 sections 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.

(2) If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.”

9. The principles for granting bond pending an appeal were reiterated in the case of Jivraj Shah v Republic (supra) which laid down the principles 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.”

10. In the case of Chimambhai v Republic 1971 EA 343 J. Harris made another observation in such an application when he said

“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. Under Article 49 of the Constitution an accused person who is facing a criminal charge has a right to bond because he is presumed to be innocent till proved guilty, unlike a case where one is already convicted.

12. In the above cases, the courts also held that anticipated delay in the hearing of the appeal, together with other factors may be grounds for grant of bail pending appeal.

13. In Dominic Karanja v Republic (1986) KLR 612, the Court of Appeal stated in alia:

“(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) …………..”

14. Having considered the above decisions, I must point out that grant of bail pending appeal is at the discretion of the court guided by the above principles and that the discretion must be exercised judicially.

15. In the Bond and Bail Policy correctly quoted by the prosecution, in such an application, the burden lies with the applicant to establish that the appeal has high chances of success or that he is likely to serve a substantial part of the sentence before the appeal is heard.

16. I have carefully examined the grounds of appeal raised by the applicant. The applicant states that the case was not proved beyond reasonable doubt; that his defence was disregarded by the court and that the sentence of imprisonment with no option of fine was excessive.

17. In this case, only the judgment of the trial court was availed to this court but the proceedings were not. The court has not had the benefit of perusing the said record to determine whether the grounds of appeal disclose an arguable appeal with high chances of success.

18. I have perused the judgment and I am of the considered opinion that the magistrate considered the law and the evidence. As for the defence, the magistrate considered it and found it consisted two contradictory versions. As for the mitigation, the applicant did not attach that part of the proceedings to her application and am therefore not in a position to deal with it.

19. The second limb for grant of bail pending appeal is whether there are any exceptional circumstances to warrant the appellant to be admitted to bail pending appeal. It was submitted that the applicant was previously out on a cash bail of Kshs. 200,000/= with one surety during the trial. In the case of Peter Hinga Ngatho versus Republic [2015] eKLR it was held that the fact that the Applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant a decision to admit an applicant to bail pending appeal. The applicant had not proved any exceptional circumstances to warrant grant of bail pending appeal.

20. It was further submitted that another exceptional circumstance was that the applicant was a mother to four (4) minors, one who was barely 1½ years when the applicant was sentenced and had to stop breastfeeding. The applicant has attached the relevant birth certificates and an application of birth notification to this end. The respondent herein has also not offered sufficient reasons to show that the applicant will abscond if granted bail.

21. The fact that the applicant was a mother of young children who were of tender years ought to have been considered during sentencing to explore the possibility of a non-custodial sentence.

22. I hold the view that being a mother of young children who all depend on the applicant to be an exceptional circumstance for the court to consider this application.

23. It is my finding that the application has satisfied the basic requirements and that it is merited.

24. The application is hereby allowed.

25. The applicant is hereby released on bond of Kshs. 200,000/= with one surety pending the determination of this appeal.

26. It is hereby so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 1ST DAY OF JULY, 2019.

F. MUCHEMI

JUDGE

In the presence of: -

Ms. Mati for Respondent

Appellant/applicant