[2017] KEHC 1516 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERUGOYA

CRIMINAL APPEAL NO. 13 OF 2017

PAULINE WANJIRU KIMANI….…….……APPLICANT/APPELLANT

-VERSUS-

REPUBLIC……………….....……….……………............RESPONDENT

RULING

1. The appellant Pauline Wanjiru Kamauwas convicted of the offence of house breaking and stealing contrary to Section 304 (1) and 279 (b) of the Penal Code and Bar-breaking and committing a felony contrary to Section 306 (a) of the Penal Code.

She was sentenced to imprisonment for three years on each count and the sentence to run concurrently.

2. Being dissatisfied with the conviction and sentence, she filed appeal in this Court. The Appellant then filed this application on 6th March, 2017 seeking release on bail pending appeal. She has based the application on five grounds namely:

(a) That the Appellant’s appeal has got overwhelming chances of success.

(b) That the sentence was excessive in the circumstances.

(c) That the Appellant is a parent and is the sole bread winner of her child and currently the child is suffering.

(d) That has medical problems and need medication.

(e) That the Appellant was convicted and sentenced to serve 3 years in jail and if not released on bond, then she might serve the whole term before the appeal is heard.

(f) That it is fair and just the Appellant be released on bail.

It is also supported by the affidavit of the appellant sworn on 6th March, 2017.

3. The State opposed the application and filed a replying affidavit sworn by Eusebius P. O. Omayo on 28th July, 2017. His contention is that the evidence before the trial court was overwhelming and the appeal has no chances of success. That there are no exceptional circumstances to warrant the Court to grant the orders. That the Applicant has not annexed documents to show she has a medical condition and that there is a medical facility in the prison. The appellant never offered mitigation in the lower court.

4. I have considered the application. The jurisdiction of the Court to grant bail pending appeal is provided for under Section 357 (1) Criminal Procedure Code which provides:

“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.”

In considering the application, the Court is called upon to exercise its discretion. It is trite law that such discretion must be exercised judicially and taking into consideration various factors as follows:

1. Whether the appeal has overwhelming chances of success.

2. There are exceptional circumstances to warrant the court to exercise its discretion.

3. There is a high probability of the sentence being served before the appeal is heard.

It has been held variously that the main ground for consideration is whether the appeal has overwhelming chances of success and there are exceptional circumstances to justify the granting of bail. The leading persuasive authority is that of Somo -V- Republic (1972) E.A. 476.

5. This is to avoid a situation where a person is released on bail pending only for the appeal to be dismissed with the possibility that he goes back to prison to serve the sentence. In Samuel Macharia Njagi -V- Republic (2013) eKLR while dealing with the application for bail pending appeal it was stated:

“The principles for admission to bail pending appeal in Kenya have for over 40 years been clustered around the decision in Somo -Vs- Republic [1972] E.A. 476. According to this case the applicant must demonstrate the existence of overwhelming chances of success. The applicant ought to be in a position to persuade the court that his or her appeal is so strong, so meritorious, that at the end, the probabilities will favor acquittal. To discharge this burden, the applicant will need to raise some critical issue of law or an issue as to the mode of application of evidence………

The court has reviewed the grounds of appeal as well as the evidence and the findings of the trial Magistrate and is of the opinion that the appeal has some reasonable prospects of success and coupled with the fact that the offence for which the accused was convicted did not involve any personal violence admitting him to bail under the circumstances does not pose any risk to society or to himself.”

6. Having considered the grounds of appeal and the proceedings before the trial Court, on the face of it I may not hold that appeal has high chances of success.

7. Granting bail entails the striking of a balance of proportionality in considering the rights of the applicant, and the public interest on the other. On the one hand it is the duty of the court to ensure that crime where it is proved, is appropriately punished, this is for the protection of society; on the other hand it is equally the duty of the court to uphold the rights of persons charged with criminal offences, particularly the human rights guaranteed under the constitution.

8. These principles are predicated on the fact once an accused person has been convicted of an offence by a court of competent jurisdiction, his constitutional right to the presumption of innocence is extinguished and he is deemed to have been lawfully convicted unless and until his conviction is overturned on appeal.

9. In order to ascertain whether the appellant’s appeal has chances of success, one needs to go through the evidence adduced before the trial court and the judgment delivered by the learned trial magistrate but without going into any detail in order not to prejudice the court which will eventually hear the appeal. At this stage one cannot delve deep into the merits or otherwise of the grounds of appeal and that in determining the application before court, one only needs to examine an overview of the grounds that have been presented.

I have examined the grounds of appeal and in my view they are frivolous. The applicant has claimed that her conviction was based on circumstantial evidence, that the trial magistrate relied on evidence of a single witness. In addition, the sentence meted out was excessive in the circumstances. These are matters to be canvassed on appeal.

10. From the record of the trial Court, the appellant did not make any mitigation that she has a medical condition. Before this Court she has not proved that she has a medical condition. No documents were annexed to show that she has such a medical condition. I am of the view that she has not proved any exceptional circumstances to warrant the Court to grant her bail pending appeal.

11. The appellant was sentenced in February this year. She has filed her appeal which has been admitted to hearing. There is no possibility that she will have served the sentence before the appeal is heard and determined. Though the Appellant was released on bail in the lower Court and she complied, circumstances have changed as she has been convicted. I am of the view that the Applicant has not shown grounds to warrant the Court to exercise its discretion in her favour. I find that the application lacks merits. I dismiss it.

Dated and delivered at Kerugoya this 15th day of November, 2017.

L. W. GITARI

JUDGE

Delivered in open Court in the presence of the Appellant; court assistant Naomi Murage this 15th November, 2017.

L. W. GITARI

JUDGE

15. 11. 2017