[2022] KEHC 95 (KLR)

Republic v Chege & 3 others (Criminal Case 34 of 2018) [2022] KEHC 95 (KLR) (15 February 2022) (Ruling)

Neutral citation number: [2022] KEHC 95 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Case 34 of 2018

JM Mativo, J

February 15, 2022

Between

Republic

Applicant

and

Naftali Chege

1st Accused

Charles Wang’ombe Munyiri

2nd Accused

Ishmael Baraka Bulima

3rd Accused

John Pamba

4th Accused

Ruling

1. This ruling determines three separate but identical applications filed by the 1st, 2nd and 3rd accused persons seeking to be released on bail pending hearing and determination of their appeals in the Court of Appeal against the judgment, conviction and sentences imposed upon them for the offence of manslaughter on 15th November 2021 by this court.

2. The 1st accused was sentenced to serve 15 years in jail, 5 of which are suspended. The 2nd accused was sentenced to 12 years imprisonment, 6 of which are suspended. The 3rd accused was imprisoned for 9 years, 5 of which are suspended. The 4th accused was sentenced to serve 12 years in prison, 6 of which are suspended, but due to his health condition, the court directed he seeks treatment outside prison, but to move to jail after his health improves, provided, he shall move to prison on 15th November 2022 regardless of whether or not he shall have recovered. He is not among the applicants before me.

3. Notwithstanding the striking similarity in the 3 applications, for the sake or brevity and at the risk of repetitions, I will, albeit briefly, summarize the 3 applications separately following the order in which they were filed.The applications

4. First, is the application dated 19th November 2021 filed by the 2nd accused seeking to be admitted to bail pending hearing and determination of his appeal. He also prays that the cash bail of Kshs. 500,000/= which is yet to be released to him be extended and applied as the cash bail pending hearing and determination of his appeal. Lastly, he prays for costs of the application to be provided for. The propriety of the prayer for costs in a criminal proceeding is in doubt. I say no more.

5. The grounds advanced by the 2nd accused are that he has appealed against the conviction and sentenced; that he is 67 years old and constantly sickly and he has been on management of chronic hypertension and arthritis since the year 2008. He states that he has to undergo kidney function test every fortnight to monitor any complications and currently he is experiencing severe joint pains and has swollen joints and backache. He states that he takes more than six types of drugs every day.

6. He also states that he is advised by his doctors to avoid stressful situations which can exacerbate his blood pressure and to undergo medical review at least twice per month for renal function test. He states that his medical report has classified him as a risk patient with underlying medical conditions and he has been advised to avoid overcrowded places. He complains of swollen limps and inability to stand on his feet unless supported which is aggravated by absence of a person to assist him at the prison, so he depends on the mercy of other prisoners.

7. He also cites absence of beddings at the Prison and complains of a crowded facility which has worsened his medical condition. He is apprehensive that he may contract COVID 19 and other infectious diseases while in prison and fears for his life. As a consequence of the foregoing, he states that he is extremely stressed. He also states that he requires close supervision and assistance of a care giver. Also, he states that his medical condition informed the lower court in granting him a cash bail of Kshs. 500,000/= and at no time did he abscond or jump bail during the trial in the lower court. Further, he states that he is a retired police officer on government pension and he has a fixed place aboard in Nanyuki where he lives with a care giver and enjoys a strong family, church and societal ties. Lastly, he states that he has an arguable appeal with high chances of success and it is only just that the application be granted.

8. In his application dated 6th December 2021, the 2nd accused also seeks similar reliefs as the 1st accused except the prayer for costs. His grounds are that the judgment was premised on weak circumstantial evidence which was not adduced in court. He states that he is widowed and on interdiction, that he is aged 56 years and suffers from chronic asthma and currently he is experiencing chest pains. He says he is waiting for the typed proceedings to lodge his appeal.

9. He complains of being subjected to sleep on a cold floor without beddings, mattresses or blanket in a crowded facility rendering him susceptible to pneumonia considering his frequent asthmatic attacks. He is apprehensive that he may contract COVID 19 and other infectious diseases while in prison than while on bond owing to his medical conditions, age and absence of isolation facilities in prison, thus endangering his life. Additionally, he states that he is extremely stressed and at no time did he jump bail during his trial in the lower court. He states that he has a fixed abode in Muranga and has very a strong family, church and societal ties. Lastly, he contends that he has a strong appeal with very high chances of success and it is only fair and just that the application be granted.

10. In his application dated 12th July 2022, the 3rd accused seeks similar orders. He also prays for costs of the application to be provided for. As I observed in the 1st application, I find the prayer for costs in these criminal proceedings misplaced.

11. The grounds in support of the application are that he was sentenced to serve 9 years of which 5 years was suspended sentence. He says he has lodged an appeal against the entire judgment, that he is 35 years old, constantly sick and he has a young family. He states that at no time did he jump bail during his trial. Lastly, he states that he has an arguable appeal with high chances of success and it is just that the application be allowed.The submissions

12. Mr. Wamotsa, counsel for the 2nd accused rehashed the grounds enumerated in the application and the supporting affidavit and relied on Kigoro Machoro v Republic1 in which the court citing previous decisions underscored the key considerations in applications of this nature which include the existence of exceptional circumstances upon which the court can conclude that it is in the interests of justice to grant bail, and an arguable appeal with high chances of success. Mr. Wamotsa implored the court to be persuaded by the said decision which he argued fits the circumstances of this case.1{2019} e KLR.

13. He urged the court to consider that the applicants appeal has high chances of success which raises substantial points of law. To buttress his argument that the appeal has high chances of success, he questioned the rational for imposing varying sentences in the same judgment for a similar offence. He cited existence of contradictions and inconsistencies in the trial including what he described as theories advanced in the judgment which he claimed are not supported by cogent evidence. Mr. Wamotsa submitted that the burden of prove was shifted from the prosecution to the accused and faulted the court for applying civil standards in a criminal trial and for misapplying the law on prima facie case. He posited that the foregoing factors constitute exceptional circumstances and urged the court to allow the application.

14. Mr. Wamotsa invited the court to consider the history of the case arguing that the applicant faithfully attended court in the lower court including presenting himself in court to take plea in obedience to court summons. He argued that the key consideration in granting bail in the lower court was the applicant’s medical condition. He reiterated the applicant’s commitment to abide with any conditions this court may impose. He also alluded to a commitment by the applicant’s daughter who is a state counsel to offer personal bond to secure the applicant’s release and attendance to court if released on bail pending as prayed.

15. Next to submit was Mr. Magolo, advocate for the 3rd accused. He argued that this court is seized of jurisdiction to grant the prayer sought and submitted that one of the accused persons is at home owing to his poor health He urged the court to consider that it has a duty to rectify the situation by ensuring that all are accorded equal treatment. He submitted that there is nothing wrong if this court finds there was an error in the judgment. He implored the court to accord the applicants the opportunity to attend the appeal outside custody. While acknowledging that the applicants have lost the benefit of the presumption of innocence, he argued that denying them bail renders their right of appeal impossible. He associated himself with Mr. Wamotsa’s submissions and argued that the only consideration is whether the applicant will attend court if released on bail. He urged the court to consider that at no time did the applicant fail to attend court. Lastly, he implored the court to allow the application and if need be impose conditions.

16. Mr. Amiga, counsel for the 1st accused associated himself with Mr. Wamotsa’s and Mr. Magolo’s submissions. He urged the court to allow the application and if it finds it fit, impose conditions. He submitted that it is unfair for one accused person to be at home while 3 are in jail. He cited miscarriage of justice occasioned by the courts finding and stated that the applicant has already filed the appeal. He urged the court to find that the applicant has demonstrated exceptional circumstances. He implored the court to consider that the 1st accused delivered the deceased to the Police Station and after handing over to the duty officer, he left the station and there is no evidence that he went back to the station until the next day when he learnt about the deceased’s death. He argued that in the circumstances of this case, it would be unfair for the applicants to await the outcome of the appeal. He urged the consider that the 1st accused is aged 66 years and he has since been interdicted. He also urged to consider his medical condition.

17. Mr. Muteti, representing the state submitted that the applications have no basis in law. He argued that under sections 356 and 357 of the Criminal Procedure Code,2 this court can only grant bail pending the entering of an appeal. He argued that this courts jurisdiction is limited to the date of delivery of the judgment and the entering of an appeal, and that, once an appeal is filed, this court ceases to have jurisdiction because all matters lie in the court of appeal. He argued that all the parties were in court when the judgment was delivered and none applied for stay. He submitted that having filed a Notice of Appeal, the matter now lies in the hands of the Court of Appeal. He urged this court to seize this jurisprudential moment and pronounce itself on the issue.2Cap 75, Laws of Kenya.

18. Mr. Mutetei submitted that the possibility of delay in hearing the appeal has been cited as a ground to allow applications of this nature. However, he argued that since the appeal has been filed in the appellate court, there is no possibility of delay. He argued that the applicants should take the matter seriously and prosecute the appeal. It was his position that by filing this application, the parties have basically delayed the appeal by delaying transmission of the record to the Court of Appeal. It was his view that this application is aimed at taking advantage of a court which does not have the benefit of hearing the witnesses. He submitted that under section 357, after the entering of an appeal, the judge who heard the matter is the proper court to exercise the jurisdiction.

19. On the argument that this is a case of circumstantial evidence, he submitted that there was direct evidence. Also, in response to the contention that the court meted varying sentences, he submitted that the court can consider the circumstances of each person and impose sentences accordingly. He pointed out that he has filed a Notice of Enhancement of Sentence and argued that they will be urging the court to consider the proper sentence.

20. On the merits of the supplication, Mr. Muteti relied on Charles Ratemo Matumo v Republic3in support of the proposition that where a presumption of innocence has already been extinguished, the applicant bears the burden of proving he merits bail pending appeal. Additionally, he relied on David Kimani Kuria v Republic4which underscored that an applicant serving sentence lacks the presumption of innocence. Further, Mr. Muteti relied on Peter Hinga Ngatho v Republic5 which held that even though it cannot be denied that the liberty of an individual is precious and it is to be jealously protected by the courts, such a protection cannot be absolute in every situation.3{2021} e KLR.4{2021} e KLR.5{2015} e KLR.

21. He also cited David Kimani Kuria v Republic (supra) which citing previous decisions held that it is necessary for an applicant to demonstrate the existence of exceptional circumstances upon which the court can fairly conclude that it is in the interests of justice to grant bail and also demonstrate the existence of an arguable appeal with high chances of success. He submitted that overwhelming chances of success refers to a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed. He also relied on Pauline Ruguru Kithumbu v Republic6 which underscored that the previous good character of the applicant and facing hardships are not exceptional circumstances. He submitted that the applicants have not demonstrated that their sickness cannot be attended to at the hospital facility at the prison and other referral hospitals. Lastly, he relied on Krishnsn v The People which held that bail is granted at the discretion of the court.6{2019} e KLR.

22. In their rejoinder, Mr. Wamotsa, Mr. Magolo and Mr Amiga urged the court to consider that they were not served with the Respondent’s written submissions and authorities and clarified that this application falls under section 379 (4) of the Criminal Procedure Code and not sections 356 and 357 as argued by Mr. Muteti. In view of the foregoing, they argued this court has the requisite jurisdiction. It was also submitted that it is not a requirement under the law that the application must be heard by the judge who heard the case. As for the exceptional circumstances, they cited age of the applicants, their health challenges and urged the court to consider the interests of justice lies in granting the orders.Determination

23. First, I will address Mr. Muteti’s invitation to this court to find that it has no jurisdiction to entertain the instant applications. His argument as I understood it is that sections 356 and 357 only triggers this court’s jurisdiction “after delivery of judgment” and “pending the entering of an appeal.” Buttressed by this phrase deployed in the above provision, Mr Muteti submitted that the applicants ought to have made the application before the trial court after the judgment and sentence and having failed to do so, the orders sought can only be available from the Court of Appeal. He argued that once the appeal is filed, this courts jurisdiction ceases because all matters lie in the Court of Appeal. He invited the court to strongly pronounce itself on this important point of law urging that the judge who heard the witnesses is better placed to address an application for bail pending appeal.

24. Mr. Muteti’s argument appears to have overlooked the provisions of section 379 of the Criminal Procedure Code which deals with appeals from the High Court to the Court of Appeal. The section reads: -1. A person convicted on a trial held by the High Court and sentenced to death, or to imprisonment for a term exceeding twelve months, or to a fine exceeding two thousand shillings, may appeal to the Court of Appeal-

25. Sub-section (4) provides as follows: -4. Save in a case where the appellant has been sentenced to death, a judge of the High Court, or of the Court of Appeal, may, where an appeal to the Court of Appeal has been lodged under this section, grant bail pending the hearing and determination of the appeal.

26. The clarity with which Parliament deployed the nomenclature and phraseology in the above provisions leave no doubt that this court is truly seized with the requisite jurisdiction to entertain the instant applications. As the short title to these provisions suggests, sections 379 and 379A deal with appeals from the High Court to the Court of Appeal unlike sections 356 and 357 which deal with Bail and stay of execution pending the entering of an appeal and admission to bail or suspension of sentence pending appeal respectively.

27. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose. This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom or a salutary and deep grained right in our criminal jurisprudence such as the right to appeal. The right to apply for bail applies to both appeals from subordinate courts and appeals to the Court of Appeal. While enacting the provisions relating to bail in appeals from the High Court to the Court of Appeal, the legislature was not writing on a clean slate in the sense of taking an unprecedented step, insofar as the right to apply for bail pending hearing of an appeal is concerned. It had before it two cognate provisions in sections 356 and 357 which deal with appeals from subordinate courts. Parliament meticulously provided for appeals to the Court of Appeal leaving no doubt as to the jurisdiction of this court to grant bail pending hearing of an appeal in the Court of Appeal.

28. There is no doubt that the power to grant bail pending hearing of an appeal is of extraordinary character and it must be exercised sparingly in exceptional cases only. It may perhaps be right to describe the power as of an extraordinary character because at this stage, the court is dealing with a convict who has lost the benefit of the presumption of innocence. In terms of section 379 (4), the superior court from which the appeal is made has a wide discretion to consider whether bail should be granted to a sentenced prisoner. This is underpinned by the use of the words “may...grant bail pending the hearing and determination of the appeal. The word “may” which is not obligatory appears in this provision. Essentially, grant of bail is a matter of judicial discretion. The Supreme Court of India in Ram Govind Upadhyay v Sudarshan Singh7observed: -7(2002) 3 SCC 598. “Grant of bail though being a discretionary order -but, however, calls for exercise of such discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do no always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be couple with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail-more heinous is the crime, the greater is the chance of rejection of the bail, though however, dependent on the factual matrix of the matter.”

29. The considerations in applications seeking bail pending appeal were articulated in Simon Mwangi Kirika v Republic8 citing Jivraj Shah v Republic9which it was stated: -8Criminal App No. NAI 3 of 2006 (UR).9{1986} KLR 605. i.The principal consideration in an application for bail pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interests 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 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.iii.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.

30. The Bail and Bond Policy Guidelines10 provide at page 27, paragraph 4. 30 that with respect bail pending appeal, the burden of proof is on the convicted person to demonstrate that there is an “overwhelming probability” that his or her appeal will succeed. Different considerations do, of course, arise in granting bail after conviction from those relevant in the granting of bail pending trial. Decided cases are in agreement that before bail can be granted to an applicant for bail pending appeal there must always be a reasonable prospect of success of the appeal. However, even where there is a reasonable prospect of success bail may be refused in serious cases notwithstanding that there is little danger of an applicant absconding. The proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice. To apply this test properly it is necessary to balance both the likelihood of the applicant absconding and the prospects of success. These two factors are inter-connected because the less likely the prospects of success, the more inducement there is on an applicant to abscond. In every case where bail after conviction is sought the onus is on the applicant to show why justice requires that he should be granted bail. Although the opportunity for interfering with evidence is not that real at this stage, the possibility that a convicted person may abscond when on bail pending the appeal, is increased.10March 2015, National Council on the Administration of Justice.

31. As Harris J observed in Chimambhai v Republic11:-11(No 2) {1971} E.A.343. “The case of an appellant under sentence of imprisonment seeking bail 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. As to the measure of that recognition the decision in Kanjis case12 is directly on the point. There, two persons had been convicted of assault causing actual bodily harm and sentenced to terms of imprisonment. Each appealed against both conviction and sentence and applied to the magistrate for bail pending the hearing of the appeal. The magistrate granted bail to one of the appellants but not the other, where upon the latter applied to the court by way of appeal from such refusal. Although in his judgement the judge said it was not the practice to grant bail to an appellant after he had been convicted and sentenced to imprisonment except in very exceptional circumstances, he went on; nevertheless, to illustrate what he considered would be circumstances justifying the granting of bail to such an applicant. The mere fact of anticipated delay in hearing an appeal, he said, was not of itself exceptional circumstance but might become one when coupled with other factors, and added that the good character of the appellant together with such an anticipated delay might constitute an exceptional circumstance.”12{1946} 22 KLR 17.

32. The Supreme Court of India in Krishnan v The People13 cited by Mr. Muteti enumerated the following conditions for bail pending hearing of an appeal:13{SCZ 19 of 2011}, {2011} ZMSC 17. i.Bail is granted at the discretion of the court.ii.The court must be satisfied that there are exceptional circumstances that are disclosed in the application.iii.The fact that the appellant due to delay in determining the appeal may, have served a substantial part of his sentence by the time his appeal is heard, is one such exceptional circumstance. Each case is considered on its merits, depending on what may be presented as exceptional circumstances.iv.It is important to bear in mind that in an application for bail pending appeal, the Court is dealing with a convict, and sufficient reasons must therefore exist before such a convict can be released on bail pending appeal.v.It is not for the court to delve into the merits of each ground. But it suffices that all the grounds are examined, and a conclusion is made that prima facie the prospects of success of the appeal are dim.vi.The fact that the applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant to admit an application to bail; pending appeal.

33. The appellants’ grounds are three-fold. One, that their appeals have high chances of success. Two, that their health conditions constitute exceptional circumstances. Three, that all are ready, able and willing to abide by any conditions imposed by this court as a price for bail pending appeal.

34. The prospects of success may be such a circumstance, particularly if the conviction is demonstrably suspect. It may, however, be insufficient to surmount the threshold if, for example, there are other factors which persuade the court that society will probably be endangered by the appellant’s release or there is clear evidence of an intention to avoid the grasp of the law. The court will also take into account the increased risk of abscondment which may attach to a convicted person who faces the known prospect of a long sentence.

35. This court will not be persuaded to grant bail merely because the applicants have filed an appeal in the Court of Appeal. The court will have to make an independent finding to determine the real prospects of success coupled with all other relevant circumstances of the case. It should be mentioned that in evaluating the prospects of success, it is not a function of this court to analyse the findings of the trial court in great detail. As was found in S v Viljoen,14 if this is done, it would become a dress rehearsal for the appeal to follow. The consideration whether bail should be granted or not should be confined to reasonable boundaries, subject to the applicable legislation and the rights of an applicant.142002 (2) SACR 550 (SCA) at 561 G-I

36. The applicants argue that their health challenges constitute “exceptional circumstances.” An applicant for bail pending hearing of their appeal is required to discharge the heavy burden of proving “exceptional circumstances” which permit his release in the interests of justice. An applicant is given broad scope to establish the requisite circumstances, whether they relate to the nature of the crime, the personal circumstances of the applicant, or anything else that is particularly cogent. Moreover, I may add that those circumstances must be viewed from the lens of the phrase “in the interests of justice permit their release.” Viewed from this dimension, the existence of exceptional circumstances become an insurmountable obstacle in the way of bail unless it is established that such circumstances exist and the grant of bail will be in the interests of justice. In defining whether exceptional circumstances exist, it must be borne in mind that personal circumstances of an applicant are not exceptional nor extra-ordinary.

37. The term "exceptional circumstances" is not defined. There can be as many circumstances which are exceptional as the term in essence implies. An urgent serious medical operation necessitating the accused's absence is one thing that springs to mind. A terminal illness may be another. It would be futile to attempt to provide a list of possibilities which will constitute such exceptional circumstances. To my mind, to incarcerate an innocent person for an offence which he did not commit could also be viewed as an exceptional circumstance. On the other hand, a convict loses the benefit of the presumption of innocence but an arguable appeal with high chances of success and the risk of serving a substantial term of his sentence before the appeal is heard may also qualify as exceptional circumstances.

38. Likewise, I do not agree that it is virtually impossible to imagine what would constitute “exceptional circumstances.” In requiring that the circumstances proved be exceptional, an applicant could satisfy the requirement by proving that there are exceptional circumstances relating to the his or her condition that render it in the interests of justice that release on bail be ordered notwithstanding the gravity of the case.

39. What appears from these definitions in my opinion is that 'exceptional 'has two shades or degrees of meaning. The primary meaning is simply: Unusual or different. The secondary meaning is: markedly unusual or specially different. I do not think it necessary in the context of bail pending hearing an appeal to plump for one degree of meaning in preference to the other. The phrase 'exceptional circumstances' does not stand alone. An applicant has to adduce evidence which satisfies the court that such circumstances exist which in the interests of justice permit his or her release. The proven circumstances have to be weighed in the interests of justice. So, the true enquiry, it seems to me, is whether the proven circumstances are sufficiently unusual or different in any particular case as to warrant the applicant's release. This will vary from case to case. This approach adds to the element of judicial discretion which is already inherently present in such applications. In my view, a court making the determination whether or not that onus of proof has been discharged exercises a discretionary power in the wide of sense of discretion.

40. It should of course never be forgotten that constitution the Constitution does not create an unqualified right to personal freedom and that it is inherent in the wording of Article 29 of the Constitution contemplates deprivation of liberty to convicted persons. The hypothesis, indeed the very reason for the existence of Article 29, is that persons may legitimately and constitutionally be deprived of their liberty in given circumstances. This clearly establishes that unless the equilibrium is displaced, an arrestee is not to be released. The court must be satisfied that “the interests of justice permit” the release from detention. If facts indispensable for establishing that the interests of justice permit the arrestee’s release are not established, the arrestee is not entitled to the remedy of bail pending appeal. In this regard, no strong case was made to suggest that the ailments cited by the applicants cannot be addressed either by the health facility within the prisons or government hospitals. In fact, the record shows that this court ordered the 2nd accused to be treated at the Coast General Hospital, he was taken to the said facility and a report to the said effect dated 28th December 2021 was presented to this court. Viewed from the various definitions alluded to earlier, the argument citing exceptional circumstances collapses. The applicants’ three applications seeking to be admitted to bail pending hearing of their appeals are all dismissed.

41. To expedite the appeals, I order that the proceedings be typed within 21 days from today.

Right of AppealDATED, SIGNED AND DELIVERED AT MOMBASA THIS 15THDAY OF FEBRUARY 2022. JOHN M. MATIVOJUDGE