[2022] KEHC 736 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAHURURU

CRIMINAL APPEAL NO. 24 OF 2021

RAPHAEL KAMAU WABACHA...……………………………APPELLANT

-VERSUS-

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

RULING

1. By charge sheet dated 16/12/2021, the Applicant seeks to be released on bond pending appeal.

2. The same is brought under Section 357 Criminal Procedure Code, Article 51 & 165 Constitution of Kenya.

3. It is supported by grounds on application namely:

i. That the Appellant was on the 9th December, 2021 convicted of Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 and sentenced to 10 years’ imprisonment.

ii. That the Appellant has appealed against the said judgment and his appeal has high chances of success.

iii. That the Appellant is the soul bread winner of his young family.

iv. That the Appellant is a 1st Offender with no criminal records and is not a flight risk.

v. That the Appellant was released on a bond of Kshs.300,000/- in the Lower Court and he faithfully attended court until his conviction.

vi. That the Appellant is ready to abide to bond terms to be set by this Honorable Court pending appeal.

vii. That it would be fair if the orders sought are granted as it might take a lot of time before the Appeal is admitted, heard and determined.

4. It is also supported by affidavit of Applicant sworn on 16th December, 2021 which reiterates same grounds.

5. The Respondent has not filed any reply to the application.

6. The parties were directed to canvass same application via submissions but only Appellant has filed same.

APPELLANT SUBMISSIONS:

7. It is submitted that the principle considerations for grant of bail pending appeal is anchored in the following elements;

i. Existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail.

ii. Where it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of substantial point of law to be urged,

iii. and that the sentence or substantial part of it will have been served by the time the appeal is heard, then, a condition of granting bail will exist.

8. Reliance was made on the following cases Jiv raji Shah v Republic [1986] KLR 605, Charles Owanga Aluoch v DPP [2015] eKLR, Mwaura v Republic [1986] KLR 600, Somo v Republic [1972] EA 476 which was referred by this court with approval in Cr. App. No. Nrb. 14 of 1986 Daniel Dominic Karanja v Republic.

9. It is contended that the trial court was right in finding that the prosecution had failed to prove the offence of defilement but it erred in finding that the alternative charge was proved whereas the Complainant and her witnesses did not mention anywhere that the Appellant touched the Complainant’s vagina using his penis.

10. That there was no evidence at all in support of the alternative charge but the trial court proceeded to convict the Appellant.

11. The Appellant was treated as a first offender and he attended court for 3 years that the matter was pending before court without jumping bail.

12. The appellant is not a flight risk and he shall adhere to bond terms set by this Honorable Court until the appeal is heard and determined.

13. The fact that proceedings are yet to be supplied and the court file is not even available at the registry is a confirmation that the Appellant might serve a substantive term of his sentence before the record of appeal is prepared and the appeal is set down for hearing.

ISSUES, ANALYSIS AND DETERMINATION

14. After going through the pleading’s judgement and submissions on record, I find the issues are; whether the appellant application has met the threshold for granting of bail pending appeal and if the above in positive, what are the conditions?

15. I have considered the pleadings and submissions by the Applicant and Prosecution. The provision of law that applies to bond/bail pending appeal isSection 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”

16. 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

(3) substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists.

17. 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.”

18. 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……..”

19. Under Article 49 of the Constitution of Kenyaan 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.

20. 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.

21. 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) (d) …………..”

22. 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.

23. In the Bond and Bail Policy guidelines 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.

24. I have carefully examined the grounds of appeal raised by the applicant. The applicant states that appeal herein has a high probability of success and one need only look at the judgment and petition of appeal to see the shortfall of the trial in the lower court.

25. 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.

26. The Appellant was sentenced to serve ten years sentence on 9/12/2021 hence there is no likelihood of him having served a substantial part of the sentence before the proceedings are typed and the appeal heard. Furthermore, the courts have currently adopted a policy of quick disposal of cases and the possibility of the appeal taking long to be heard does not arise.

27. On the aspect of demonstration of exceptional or unusual circumstances, court observes that, the Appellant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal.

28. It is trite that Previous good character of the Applicant and the hardships if any facing his family were not exceptional or unusual circumstances. See Dominic Karanja v Republic supra.

29. Further 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. See Peter Hinga Ngotho v Republic supra.

30. In this case the issue of whether the Appellant is a first offender and whether the Appellant complied with the bail conditions granted before conviction, is not a condition for granting bond pending appeal as it does not constitute exceptional or unusual circumstance.

31. The court thus finds no merit in the instant application and makes the following orders;

i. The application is dismissed.

ii. The appeal be fixed on priority basis.

DatedandSignedatNYAHURURUthis28thday ofMarch, 2022.

………………………………..

CHARLES KARIUKI

JUDGE