[2017] KEHC 870 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CRIMINAL APPEAL NO.34 OF 2017

R K T……………....................APPELLANT

VS

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

RULING

1. The applicant in this matter was charged with the offence of injuring an animal contrary to section 338 of the Penal Code. When he appeared before Hon. Limo on 9th October 2017, he pleaded guilty to the offence and was sentenced to 14 years imprisonment.

2. The appellant has now filed the present application dated 18th October 2017 in which he seeks to be released on bail pending appeal. The application is based on the grounds that the applicant had preferred an appeal which has overwhelming chances of success, and that if the orders he seeks are not granted, his appeal would be rendered nugatory.

3. The application is further based on the ground that the admission for hearing and final disposal of the appeal would take a long period, and his fundamental rights ought to be protected. The application is supported by his affidavit sworn on 18th October 2017 in which he reiterates the grounds set out in his application.

4. In his submissions on behalf of the applicant, Mr. Nyadimo submitted that the application is based on section 357 (1) of the Criminal Procedure Code which gives the High Court inherent power to grant a convicted person bond or cash bail pending hearing or determination of his appeal. Further, that the application is also grounded on Article 51 of the Constitution which grants both an accused and a convicted person fundamental rights.

5. It was also his submission that under Article 49 (h) of the Constitution, an accused person is granted the right to reasonable bail terms, which right can only be limited if the prosecution can provide compelling reasons to limit the right. Mr. Nyadimo relied on Criminal Appeal No. 2 of 2015- Peter Hinga Ngatho vs Republic- for the proposition that the convicted applicant in this case should be granted bail or bond as the matter has high chances of success as the sentence granted, though legal, is punitive and harsh.

6. Mr. Nyadimo further submitted that the applicant is sick, that he had the authority of the applicant’s family to disclose that the applicant is HIV positive and his continued imprisonment would likely interfere with his medication.

7. It was his submission, thirdly, that the applicant was not given the alternative of a fine when he was sentenced by the trial court. Considering the nature of the offence and the fact that he is a first offender, the court should have considered this fact.

8. The state opposed the application for release of the applicant on bail pending appeal. Ms. Keli submitted, first, that the applicant had already been convicted and is in prison. Consequently, bail was not a right at this stage, nor was it a fundamental right as he is already incarcerated, which bars him from exercising his right or freedom of movement as it had already been found by a court of law that he should be behind bars.

9. Ms. Keli relied on the decision in Mokua & Another vs R Kisii High Court Criminal Appeals Nos 268 and 269 of 2012with respect to the circumstances under which bail pending appeal should be considered. Counsel also cited the decision in Jivraj vs Republicon what needs to be established for bail pending appeal to be granted. In her view, this had not been established in this case.

10. It was her submission further that the accused had pleaded guilty to the offence charged. He can therefore only appeal on sentence, which a perusal of the law in the matter shows is legal. In her view, there is no likelihood of success of this appeal as it has no merit. She opined that it has not been demonstrated that by the time the appeal is heard, the sentence will have been served, noting that the applicant was sentenced to fourteen years’ imprisonment on 9th October 2017. The proceedings are typed, and there is no reason why the record should not be put in order and the appeal heard. Further, that based on the sentence that the applicant is serving, there is a likelihood that the applicant will not turn up should he be released on bail pending appeal.

11. With respect to the submission that the applicant has HIV, the state’s response is that no evidence has been placed before the court to establish this, and the applicant’s Counsel cannot give evidence from the Bar. Further, even if he was sickly as alleged, that would not fall under exceptional circumstances to be considered in such an application. Counsel cited in this regard the decision in Dominic Karanja vs R (1986) KLR 612. The state’s submission is that where there are prison medical facilities for prisoners where they can be attended to, it cannot be said that it is an unusual circumstance as the applicant can be given access to medical facilities or drugs.

12. The state’s view was that this matter should be fixed for hearing of the appeal as the proceedings are ready and the issues it raises are fairly straightforward as the applicant was convicted on a plea of guilty.

13. In his reply, Counsel for the applicant submitted that the state had not provided any compelling reasons why the applicant should not be granted bail pending appeal.

14. With respect to the submission that the applicant is serving a 14 year sentence and there is therefore a high chance of absconding, Counsel was of the view that the court should take judicial notice that other convicted persons facing grievous charges such as murder or robbery with violence have been granted bail pending appeal.

Determination

15. I have considered the application before me and the submissions of the respective Counsel thereon. I note from the record that the applicant was convicted on his own plea of guilty to a charge of injuring an animal contrary to section 338 of the Penal Code. He stated in his mitigation that he was not remorseful, and that he knew what he was doing.

16. The present application is premised on section 357 of the Criminal Procedure Code and Article 49 of the Constitution. Section 357 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..

17. Article 49(1) (h) provides that:

An arrested person has the right—

(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

18. In the present case, the applicant is no longer an arrested or accused person. He was convicted on his own plea of guilty and sentenced to 14 years imprisonment. That being the case, he is a convicted person, and Article 49(1) (h) does not therefore apply to him. He does not have a fundamental right to be released on bail or bond. With respect to the application of Article 51 cited by the applicant’s Counsel, it is worth noting that a person who is detained, held in custody or imprisoned in accordance with the law retains the rights and fundamental freedoms set out in the Bill of Rights “except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned.”

19. The applicant seeks to be released on bail pending appeal. He was convicted on his own plea of guilty. From the pleadings and the submissions of Counsel for the accused, it appears that what he is dissatisfied with is the sentence that was imposed on him. That being the case, he can only appeal against the sentence, nothing more. Section 348 of the Criminal Procedure Code provides as follows:

No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.

20. The applicant has a right to appeal against the severity of the sentence imposed on him, or the legality thereof, following his plea of guilty. The applicant has not demonstrated that the sentence imposed on him was illegal, and there being no petition of appeal annexed to his application, the court is not in a position to gauge whether the grounds relied on in the appeal would be sufficient to warrant the release of the applicant on bail.

21. In any event, I am not satisfied that a person who appeals against a sentence imposed following a plea of guilty is entitled, in circumstances such as are before me, to be released on bail pending appeal. In the case of Cliff Bikeri Mokua & Another vs Republic Kisii High Court Criminal Appeals Nos 268 and 269 of 2012, Muriithi J observed as follows:

“In a recent decision, Boke Chacha v. R Kisii HC Criminal Case No. 244 of 2012, I considered the authorities on bail pending appeal and held as follows:-

“According to authorities on bail pending appeal, bearing in mind that the applicant has now been convicted by a competent court and is on punishment for the conviction which stands until it is set aside on appeal, the criteria for consideration is:

a. Whether there exists exception or unusual circumstances which justify grant of bail in interests of justice. See Jivraj Shah vs R (1986) KLR 605.

b. Such exceptional circumstances exist where the appeal has overwhelming chances of success or where a set of circumstances exist which disclose substantial merit in the appeal and that the sentence or a substantial part of it will have been served by the time the appeal is heard. See Jivraj Shah supra; Mutua vs R (1988) KLR 497; and Somo vs R (1972) E.A 476.

c. The previous good character of the applicant and the hardships facing his family, and his ill health, where there existed prison medical facilities for prisoners, are not exceptional or unusual circumstances. See Dominic Karanja vs R (1986) KLR 612.

d. A solemn assertion, even if supported by sureties, that the applicant will not abscond if released is not sufficient ground for releasing a convicted person on bail pending appeal. See Dominic Karanja, supra.”

22. Counsel for the applicant stated that the applicant is HIV positive, and that he would not fail to appear in court. He observed that there are persons charged with murder or robbery with violence who are granted bail pending appeal. The ill-health of the applicant, as observed by Muriithi J above, is not a basis for granting a convicted person bail pending appeal. As for cases or persons convicted on capital offences getting bail pending appeal, I believe that is a mis-statement of the law given the express provisions of section 379 (4) of the Criminal Procedure Code.

23. Accordingly, I decline to allow the application for bail pending appeal dated 18th October 2017. However, I direct that the record of appeal in this matter shall be prepared and the appeal does proceed to hearing on a priority basis.

Dated Delivered and Signed at Kericho this 6th day of December 2017.

MUMBI NGUGI

JUDGE