[2018] KEHC 4161 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL APPEAL NO. 133 OF 2018

PETER MWANIKI MBUGUA...................................1ST APPLICANT

SARAH WANJIRU GATITU....................................2ND APPLICANT

VERSUS

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

RULING

Peter Mwaniki Mbugua, 1st Applicant, and Sarah Wanjiru Gatitu, 2nd Applicant, were charged before the Chief Magistrate’s Court with various counts of forgery contrary to section 349 of the Penal Code and uttering false documents contrary to section 353 of the Penal Code. They were tried, found guilty and convicted as shown in the judgment of the lower court (Hon. C. Njagi, R.M). They are dissatisfied with the conviction and sentence and have preferred to lodge an appeal challenging the same before the High Court. In their intended appeal as shown in the attached Petition of Appeal, the applicants have raised six grounds of appeal citing errors in law and fact on the part of the trial court. They also challenge the charges preferred against them in the lower court terming them as defective.

The applicants have come to this court by way of Notice of Motion dated 1st August 2018 and filed in court on 2nd August 2018 seeking to be admitted to bail pending the appeal. This court consolidated High Court Criminal Appeal No. 133 of 2018 in respect of the 1st Applicant and High Court Criminal Appeal No. 134 of 2018 in respect of the 2nd Applicant into one file High Court Criminal Appeal No. 133 of 2018. In the affidavits sworn by Mr. Daniel Kirera Bosire, advocate, and in the brief oral submissions by Mr. Were, advocate instructed by M/s Ongegu & Associates Advocates for the applicants, the applicants have a strong appeal with high chances of success and that the appeal is not frivolous. It was submitted that the applicants are a couple with young children who need parental care and that the trial court sentenced them to serve imprisonment without the option of a fine and the sentences to run consecutively instead of concurrently. It was further submitted that the charge sheet is defective in that Count 1 states that alleged forgery was committed on 24th June 2018 while Count 2 states that the alleged document was uttered on 11th June 2018 which cannot be true. Mr. Were urged the court to grant this application and admit the applicants to bail pending the appeal. He urged that the applicants are not flight risks and that they were on bond in the lower court and did not breach any of the terms and conditions of bail.

The application is not opposed. Mrs. Aluda for the Respondent told the court that she would not oppose the application for reasons that the applicants were sentenced to 9 years imprisonment when the offences for which they were convicted occurred in the same transaction. She further submitted that the charge sheet has gaps where the 2nd Count is said to have occurred before the 1st Count and that the applicants were not given an option of a fine. She however sought to have the appeal heard on priority basis.

Section 357 91) of the Criminal Procedure Code states that:

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.

The applicable principles in an application for bail pending appeal are well articulated in various court decisions. A case in point is Jivraj Shah v. Republic [1986] KLR 605 where the Court of Appeal articulated these principles as follows:

i. The existence of exceptional circumstances upon which the court of Appeal can fairly conclude that it is in the interest of justice to grant bail.

ii. If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged and the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist.

It has been held that where the appeal has overwhelming chances of being successful, there is no justification in denying the applicant bail pending the intended appeal (see Somo v. Republic [1972] EA 476). I agree with the court in these principles.

I have considered this application which I note is conceded by the prosecution. I have also had time to peruse the charges brought against the applicants in the lower court and I agree with Mr. Were for the applicants that there are defects in Counts 1 and 2 in that the document (National Bank personal application form) is alleged to have been uttered on 11th June 2010 and the same document is alleged to have been forged on 24th June 2010. I also note that the applicants were on bond in the lower court and I have not been given any reasons to show that they breached the terms and conditions of the bail/bond.

I am persuaded that this application has merit and I hereby allow the same. Each applicant shall execute a bond of Kshs 500,000 with one surety of the same amount each. In the alternative each applicant shall pay cash bail in the sum of Kshs 200,000. I further order that this matter be mentioned on 19th September 2018 before a Judge in the Appeals Section of the Criminal Division for directions as to when this appeal can be heard. Orders shall issue accordingly.

Delivered, dated and signed this 9th day of August 2018.

S. N. Mutuku

Judge