[2015] KEHC 3902 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

CRIMINAL APPEAL NO. 58 OF 2015

Wendoh, J

RICHARD MUTEITHIA …………..….. APPELLANT

V E R S U S

REPUBLIC ………………… RESPODENT

RULING

The applicant herein Richard Muteithia was charged with the offence of stealing by servant contrary to Section 281 of the Penal Code CAP 63 of the Laws of Kenya. He was sentenced to serve 2 years imprisonment by SPM’s Court Meru. The appellant filed an appeal to this court on 8th May 2015, by a Petition of Appeal dated 7th May 2015.

By a Chamber Summons filed in court on 8th May 2015, he prays that this court do release him on bond pending the hearing and determination of his appeal or in the alternative the sentence being appealed against be suspended pending the hearing and determination of the appeal on grounds that he is a youthful adult and a secondary school student and that he wishes to continue pursuing his education and that his grounds of appeal are irrefutable and he highly believes that his appeal will be upheld. He reiterated the same grounds in the affidavit sworn in support of the application. He promised to abide by any orders that the court will grant.

The application was opposed by the Learned Counsel for the state Mr.Mulochi who urged that the applicant had not demonstrated that his appeal had high chances of success and that at the time that he committed the offence, he was not a student but rather an employee of the complainant.

There is a wealth of authorities on the conditions precedent to the grant of bail pending appeal some of which I will refer.

In Abdi V. Republic (1991 KLR 171) the court held.

“An application for bail pending appeal is to be granted in rare and exceptional circumstances.

To admit an applicant to bail is the discretion of the court which must be judicially exercised keeping in sight all the facts relating to the application, all the matter material to the trial at the lower court, the grounds submitted in the petition and the chances of success and the nature of the trial.

The time it would take for appeal to be prosecuted and determined is by itself not a sufficient ground.

In Jivraj Shah v. Republic (1986) KLR 605

The court considered another ground to be.

“If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on an 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.”

This is an application for bail pending appeal. The applicant has already been found guilty by the trial court and is serving sentence. It is unlike an application for bail pending trial where the applicant has a constitutional right to be considered innocent until proved guilty. In such a case the accused is presumed to have been properly convicted unless the conviction is quashed.

In this application, one of the principle considerations is whether the appeal has a likelihood of success. See Ademba V. Republic (1983) KLR442. The applicant had deposed that his appeal has high chances of success. In Some V. Republic 1972 EA 476 court held:

“iii) the most important ground is that the appeal has an overwhelming chance of being successful; in that case there is no justification of depriving the applicant of his freedom.”

In Dominic Karanja V. Republic 1986 KLR 612, the court of appeal said:

The most important issue was that if the appeal had such overwhelming chances of success, there was no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.

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.

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.

The onus rests on the applicant to demonstrate that his appeal has high chances of success. In this case the applicant did not attempt to discharge that burden. A cursory perusal of the proceedings and judgment of the trial court does not show that the decision of the trial court was without basis and that the appeal may result in an outright acquittal. Without going into the merits or otherwise of the intended appeal, I am not satisfied that the appellant has demonstrated that his appeal has high chances of success. Whereas the appellant intimated to court that he was a student, there is nothing unusual or exceptional with the appellant being a student. The fact that he says that he was on bond in the trial court and that he will abide by the court’s order is not sufficient to have him released on bond pending appeal. The proceedings have already been typed, and the Counsel should have the record prepared and placed before the Judge for admission. I do not anticipate any delay in hearing the appeal.

In such an application for bail pending appeal, the court is called upon to exercise its discretion which is to be exercised judicially. In the exercise of the said discretion, I am satisfied that the applicant has not satisfied any of the conditions required for grant of the bail pending appeal. I decline to grant the application and the applicant should remain in prison pending the hearing and determination of his appeal. The application is hereby dismissed.

DATED AND DELIVERED THIS 3RD DAY OF JULY, 2015

R.P.V. WENDOH

JUDGE

PRESENT

Mr. Mulochi for State

Mr. Wamache Holding Brief for Mr. Kaumbi for Appellant

Faith/Janet, Court Assistant

Accused, Present