[2022] KEHC 770 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYAHURURU

CRIMINAL APPEAL NO. E025 OF 2021

ROBINSON KAMUNDIA MURUGI...........................................APPELLANT

VERSUS

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

RULING

1. The Applicant seeks to be released on bail/bond pending hearing and determination of appeal.

2. The application is anchored on provisions of Section 357 Criminal Procedure Code, Article 51 & 165 Constitution of Kenya. It is based on grounds:

i. That the Appellant was on the 17th November, 2021 convicted for the offence of Gang Rape Contrary to Section 10 of the Sexual Offences Act and he was on 10th December, 2021, sentenced to 15 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 an orphan and a student.

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 cash bail of Kshs.40,000/- 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 the Appellant is ready to abide to bond terms to be set by this Honorable Court pending appeal.

viii. 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.

3. It is supported by affidavit of Robinson Kamundia Murugi sworn on 9th February, 2022 which reiterates the grounds stated above.

4. The Respondents replied via submissions filed on 23/07/2022.

5. The parties canvassed application via submissions.

APPELLANT’S SUBMISSIONS:

6. The appellant submits that he has met the threshold of being granted bail pending appeal on the basis that, 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 that the sentence or a substantial part of it, will have been served by the time the appeal is heard.

7. That on the evidence of the Complainant was analyzed by the trial court in pages 1 – 5the judgment marked as annexture “RKM1”.

8. The complainant only mentioned that the Appellant once in her evidence where it is stated that “She bit him on the hand before he called Robinson (11th accused) who then entered with the other accused persons including Joram Kimani who is not among the accused persons charged.”

9. She did not state anywhere that the Appellant removed her clothes and/or raped her as the same was alleged to have been done by the 1st and 2nd accused. (Michael and Kelvin). The court nevertheless found that the Appellant was guilty of the offence for locking the door in order for the 1st and 2nd accused persons to do the act. (see page 32 of the judgment). There was no mention in the analyzed evidence that the Appellant indeed locked the door.

10. The Appellant in his defence found in page 18 of the judgment denied committing the offence and he stated that he was at home when the offence is alleged to have been committed and only came to learn of it days after he was requested to record a statement with the police.

11. The Appellant’s appeal has overwhelming chances of success.

12. It has not been denied that the Appellant was out on a cash bail of Kshs.40,000/- and he religiously attended court. He has applied for the lower court proceedings which are yet to be supplied to him and it might take a substantial amount of time before the record of appeal is prepared to pave way for the hearing of the appeal.

13. The Appellant was treated as a first offender and as confirmed in the judgment he did not rape the Complainant others did. The fact that he was sentenced to serve 15 years’ imprisonment does not disentitle him to bond as courts have granted bond to Appellants facing sentences as confirmed in the case of Charles Owanga Aluch where the Applicant had been sentenced to 15 years’ imprisonment and the case of John Kihonge Njeri where the Applicant had been sentenced of 10 years (supra).

14. The Appellant is not a flight risk and he is ready to comply to bond terms set by the Honorable Court until the appeal is finalized.

RESPONDENT’S SUBMISSIONS:

15. The respondent submits that, that an Appellant under sentence of imprisonment seeking bond lacks one of the elements normally available to an accused person seeking bail before trial and that is the presumption of innocence.

16. That the t bail and bond policy guidelines page 27 paragraph 4. 30 provides that the burden is on the convicted person to demonstrate that there is an overwhelming chance of success. In this particular instance the record is not ready hence It cannot be said whether the appeal has overwhelming chances of success. A perusal of the judgment demonstrates that the trial Magistrate duly considered the law and evidence in arriving at a conclusion of convicting the Appellant.

17. That the Appellant was sentenced to serve 15 years’ imprisonment on 10th December 2021 hence there is no likelihood of him having served a substantial part to the sentence before the proceedings are typed and the appeal heard.

18. Furthermore, the, courts have currently up scaled work and the possibility of the appeal taking long to be heard should not arise.

19. The Appellant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. Respondent cites the case of Dominic Karanja v Republic [1986] KLR 612. which held that the previous good character of the Applicant and hardships if any facing his family were not exceptional or unusual circumstances.

20. Further relied on is the case of Peter Hinga Ngotho v Republic [2015] eKLR which held that 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.

21. It is contended that, 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.

ISSUES, ANALYSIS AND DETERMINATION:

22. After going through the application, affidavits filed and the parties’ submissions I find the sole issue is whether the applicant has met the threshold of being granted bail pending appeal?

23. The Appellant was sentenced to serve 15 years’ imprisonment on 10th December, 2021 thus lodged appeal to impugn the judgement and sentence of the trial court in the instant matter.

24. The principles for granting bond pending appeal are well set out in the case of Jivraj Shah v Republic [1986] eKLRwhich include:

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

ii. Whether the Appeal has overwhelming chances of success.

iii. Whether there is a likelihood of the Appellant having served a substantial part of the sentence by the time the appeal is heard and determined.

25. It should not be lost, that an Appellant under sentence of imprisonment seeking bond lacks one of the elements normally available to an accused person seeking bail before trial and that is the presumption of innocence.

Does the appeal have overwhelming chances of success?

26. The bail and bond policy guidelines page 27 paragraph 4. 30 provide that the burden is on the convicted person to demonstrate that there is an overwhelming chance of success. In this particular instance the record is not ready hence It cannot confirm whether the appeal has overwhelming chances of success. A perusal of the judgment demonstrates that the trial Magistrate duly considered the law and evidence in arriving at a conclusion of convicting the Appellant.

27. Is there is a possibility of delay in hearing and determination of the Appeal:

28. The Appellant was sentenced to serve 15 years’ imprisonment on 10th December 2021 hence there is no likelihood of him having served a substantial part to the sentence before the proceedings are typed and the appeal heard. Furthermore, the courts have currently up scaled work and the possibility of the appeal taking long to be heard should not arise.

On demonstration of exceptional or unusual circumstances:

29. The Appellant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. In Dominic Karanja v Republic [1986] KLR 612it was held that the previous good character of the Applicant and hardships if any facing his family were not exceptional or unusual circumstances.

30. Similarly, in Peter Hinga Ngotho v Republic [2015] eKLR it was held that 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. 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. At this point the court takes note of the fact that the Appellant has lost the presumption of innocence and is now a convict.

31. Thus the court finds no merit in the application and makes the orders that;

i. The application is dismissed.

ii. Appeal heard on priority basis.

DATED, SIGNED AND DELIVERED AT NYAHURURU THIS 28TH DAY OF MARCH, 2022.

………………………………..

CHARLES KARIUKI

JUDGE