[2022] KEHC 2636 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

ANTI CORRUPTION AND ECONOMIC CRIMES DIVISION

ACEC MISC. APPLICATION NO. 5 OF 2021

STEPHEN ARAP SOI............................................................................................APPLICANT

VERSUS

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

RULING

Introduction

1. The Applicant was charged with and tried on 6 counts of corruption related offences in Nairobi Chief Magistrate Anti-Corruption Case No. 45 of 2018; Republic v Hassan Wario Arero and 5 othersand was subsequently convicted and sentenced to a fine of Kshs.105,600,000/= in default to a term of imprisonment for seven years.

2. The Applicant being dissatisfied with the decision of the trial court intends to appeal to this court and has also filed an Application for bond pending appeal. The application which is dated 28th September 2021 was initially filed in the Criminal Division which transferred it to this court. The application is accompanied by a supporting affidavit and supplementary affidavit sworn by Joel Kimutai Bosek, the Applicant’s Advocate on record on 28th September 2021 and 8th December 2021 respectively.

3. The Application is premised on grounds that: -

“1. The applicant was tried, convicted and sentenced to pay a total Kshs105,600,000/- or in default serve a total of 17 years prison on the 15th and 16th of September 2021 by the Chief Magistrate HON E.N. JUMA (CM) in Nairobi Anti-Corruption case number 45 OF 2018 (Republic —vs- Hassan Wario Arero and Others).

2. The Applicant being dissatisfied with the conviction and sentence has lodged an Appeal before this Honourable court challenging the whole conviction and sentence issued on the 15th and 16th of September 2021.

3. The Applicant's Appeal is arguable with overwhelming chances of success as set out in the Petition of Appeal filed before this Honourable Court.

4. Given the time it will take to hear and determine the applicant's Appeal, if successful, the Appeal will be rendered nugatory and the Applicant stands to suffer great prejudice and injustice because he will have served part of the sentence if not the entire sentence.

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

6. The Applicant suffers underlying chronic medical conditions, which require that he sees a specialist regularly and follow a strict diet, which may not be readily available at the prison.

7. The Applicant is 65 years of age and as aforementioned he suffers from chronic medical conditions and as such being held in prison while the Appeal herein is being heard is likely to expose him to other infections including the covid-19 virus which may have severe effects or even death for persons like the Applicant who is in the vulnerable group.

8. The Applicant is the sole breadwinner and therefore being in custody pending the hearing and determination of the Appeal will leave his family destitute and desperate and their livelihood will be greatly compromised if he remains in prison during the pendency of his Appeal

9. The Applicant was out on bond during the trial at the lower court and he dutifully attended court at all time. He has always attended court when required and will continue to do so if released on bail pending Appeal.

10. The Applicant is not a flight risk and is ready to adhere to any bail/bond terms and any other conditions that may be imposed by this Honourable Court.

11. The Applicant did not breach the bail conditions that were set by the lower court and diligently appeared in court whenever he was required to be present.

12. The Respondent will not suffer any prejudice in the event that this Application is allowed and the sentence deferred until the hearing of the Appeal and in the unlikely circumstance that the Appeal fails the Applicant will serve the sentence imposed by the lower Court.

13. The Applicant was convicted on 6 counts which as per the Charge Sheet he could not have possibly committed because there is overwhelming evidence on record that he was nowhere near the scene of crime.

14. The Applicant was convicted on misapplication and misinterpretation of the law that as the Chef De Mission (CDM) in the Rio Olympics of 2016 he was discharging duties of a police/ Public officer yet the Applicant was in the assignment given the National Olympic Committee of Kenya (NOCK-K) a Non-Governmental Organization (NGO) which is affiliated to the International Olympic Committee (IOC) whose role and functions have nothing to do with discharge of public duties in Kenya.

15. The Applicant's role within NOC-K had nothing to do with former duties as a police officer.

16. The Police Act does not envisage a situation wherein police officers are placed under insubordination of civilians and the Applicant's role in NOC-K was that of a private citizens and had nothing to do with his role as a police officer.

17. As a NOC-K official the Applicant was not bound by the provisions of Anticorruption and Economic Crimes Act, 2003 which only apply to public officers.

18. The Applicant herein was unconstitutionally discriminated and condemned to pay fines for allowances said to have been overpaid to athletes and sports officials, yet the decision was arrived at by the National Steering Committee made of several individuals.

19. The Applicant was unlawfully condemned on a finding that he had conferred benefit to his superiors at the NOC-K, Dr Kipchoge Keino and Kinyili Paul, the President and Secretary General yet there was no evidence of such payments.

20. The Applicant was condemned that he made payments to Kinyili Paul who was the 5th Accused yet the Honourable Magistrate in acquitting the 5th accused person found that indeed no such payments were made to him.

21. The Applicant was condemned on the basis of misinterpretation of the law that he could authorize payments in the Ministry in charge of Sports yet he was not an employee of the ministry and therefore he could not be an AIE holder, Accounting officer or Authorizing officer.

22. The Applicant was condemned for cancellation of tickets for no show at the airport yet majority of the individuals who didn't turn up are senior government officers in the Ministry of Sports and government parastatals who were not under the authority or supervision of the Applicant.

23. The Applicant was condemned for cancellation of tickets yet he didn't authorize any such cancellation and the same arose from the terms of a contract arrived at by the Ministry in Charge of Sports and a private entity by the name Green bay Limited. The Applicant/Appellant herein had nothing to do with the procurement process and entering of such contract.

24. The Applicant/Appellant was condemned unfairly, maliciously and discriminative and on the misinterpretation of the law and out of open bias that he could exercise joint authorization of payments with the Principal Secretary in the Ministry in Charge of Sports.

25. The Counts in the Charge Sheet, which went through several amendments are defective and further amendments had to be done by the Hon Magistrate suo motu to condemn the Appellant/Applicant. In particular, in all the 6 counts the prosecution quoted either section 48 or 48(1) of Anti-Corruption and Economic Crimes, 2003 which does not exist.

26. 1t's only fair and in the interest of justice that the orders sought herein by the applicant are allowed.”

4. The application is vehemently opposed by way of the Grounds of Opposition dated 29th November 2021 wherein the Respondent states that:-

“1. The Application lacks merit, is misconceived and unsubstantiated.

2. The Appeal is an abuse of the court process since the Applicant was properly convicted before the trial Court and the prosecution did discharge it burden of proof beyond reasonable doubt.

3. The Applicant has not demonstrated any special or unusual circumstances to warrant him to be granted bail pending appeal.

4. THAT the application lacks merit and the same should be dismissed in its entirety.”

5. When the matter came up for hearing on 16th December 2021, this court granted leave to the applicant to appeal out of time as the application to do so was not opposed by the Respondents. The application for bond pending appeal was then canvassed through written submissions.

Applicant’s submissions

6. Counsel for the applicant relied on the written submissions dated 8th December 2021 and List of Authorities dated 12th November 2021. Counsel submitted on two broad grounds:

(a) whether there exists an arguable appeal and

(b) whether there are special or compelling reasons that warrant the grant of bail pending appeal.

7. On whether the applicant has an arguable appeal Counsel submitted that the Applicant was charged with 6 Counts of corruption related offences but was convicted on 7 Counts, including Count number 17 which he had not been charged with. That the trial court found the Applicant guilty and convicted him on Counts 5, 9,12,14,15 and 17. That the court did not do any analysis or give any reasons on why the Applicant was convicted on Count 17 whereas the accused persons in Count 17 were Richard Titus Ekai and Haron Komen Chebet and not the Applicant Counsel submitted that the trial Magistrate’s analysis of the evidence exhibited bias against the applicant and was a violation of the applicant’s constitutional rights. Counsel asserted that the learned Magistrate amended the charge suo moto and removed the name of the 2nd Accused Richard Titus Ekai from Count 12 yet the said Richard Titus Ekai was jointly charged with the Applicant on that count hence proof of bias. On the loss of funds, Counsel submitted that the Applicant was not in a position to make any payments as he was not the Accounting or AIE Holder in the Ministry which fact he submitted, was confirmed by Permanent Secretary Richard Titus Ekai. They assert that whereas the applicant is alleged to have committed the offences between 19th July 2016 and 26th August 2016 he was away from the country having left on 20th July 2016 and he could not therefore have committed the offences. Counsel submitted that even the Permanent Secretary testified that the applicant was in Rio De Janeiro on those dates and also that the Applicant was not a treasurer at NOCK and could not therefore have authorized payments. Counsel further submitted that no evidence was led in respect to Count 5, that there was no evidence that one Hezekieh Kipchoge Keino received any money from the applicant, that none of the four alleged recipients of the impugned funds testified and that there was nothing to show who deposited the money the subject of the charges in the accounts of the recipients.

8. On whether there exist exceptional circumstances to warrant the grant of bail pending appeal, Counsel for the applicant submitted that the Applicant is a senior citizen aged 65 years old; That he has several health complications and that he has deteriorated from the time of his arrest and that his health is precarious and it is in the interest of justice that he be released on bail or bond to enable him access better medical care from his personal doctors and so that he can have a good dietary regime that will support his healing process. Counsel also submitted that the Applicant faithfully and diligently complied with the conditions of bail throughout the trial and is not a flight risk. They also assert that the Respondent will not suffer any prejudice should the applicant be granted bond.

9. Mr. Bosek further submitted that the Applicant was serving in the National Olympic Committee (NOCK) a non-governmental organization with nothing to do with the Kenya Government and was not therefore a public officer and that whereas six members of the steering committee were charged only the applicant was convicted hence the reason the applicant asserts the trial magistrate was biased. Mr. Bosek reiterated that other than just wanting to punish the applicant, the respondent did not demonstrate the prejudice it will suffer if the applicant is released on bond. Counsel urged this court to grant the application. To support their submissions Counsel relied on the following cases:- John Koyi Waluke & another v R [2020] eKLR, Peter Hinga Ngatho v R [2015] eKLR, Kigoro Machoro v R [2019] eKLR and George Wambugu Thumbi v R [2018] eKLR

The Respondent’s submissions

10. On her part Counsel for the Respondent relied on the Grounds of Opposition dated 29th November 2021 and submissions dated 14th December 2021. Counsel submitted that the applicant has not demonstrated that the appeal is meritorious; That the National Olympic Council of Kenya (NOCK) is a creation of Section 25 of the Sports Actand therefore a public body and that the funds that were being used for the event which gave rise to the criminal proceedings were derived from the National Treasury for the Ministry of Sports, Culture and Arts hence they were public funds. Counsel submitted that the applicant being a Deputy Treasurer of NOCK, a creation of the Sports Act, he was dealing with public funds as a public officer assigned that role in the National Olympics Council (NOCK) as the Chief de Mission and as the Deputy Treasurer. Counsel asserted that the applicants claim that he was away on the date’s material to the case or that he did not take part in the activities of the steering committee is not true. Counsel contended that the charges against the applicant were proved to the required standard and that there is no proof that the court erred in the application of the principles of law or in analyzing the evidence and that the applicant was properly convicted. Counsel also argued that the right to bail under Article 49 of the Constitution applies to accused persons and not convicted persons and that accordingly that the ground that the applicant had been of good character during his trial and that he is not a flight risk is not relevant at this stage. With regard to the exceptional circumstances cited Counsel submitted that the report from the prison health facility does not indicate that the Prisons Service is not able to look after the applicant’s health. Counsel contended that there are adequate facilities to take care of the applicant’s health in the prison facility. Counsel further argued that the age of the applicant is not a factor to be considered in determining this application as he was lawfully convicted by the trial court upon considering all the evidence before it. Counsel urged this court to dismiss this Application. In support of her submission Counsel for the Respondent cited the case of Salesio Karanja v Republic [2019] eKLR

Analysis and Determination

11. This application is predicated upon Section 357 of the Criminal Procedure Codethe relevant part of which states:-

357. Admission to bail or suspension of sentence pending appeal

(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:

Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court............”

12. The grant of bail pending appeal is discretionary but as always the discretion must be exercised judicially and within acceptable legal principles. In the case of Jivraj v R [1986] KLR 608, the court stated the principles to be considered in such an application were to include: proof that the applicant’s appeal has overwhelming chances of success, that the appeal will be rendered nugatory should bail be denied and proof of special or exceptional circumstances that warrant the grant of bail. However over the years courts have formulated additional principles such as the age of the applicant (see the case of Stephen Ngui Kyalo v Republic [2019] eKLR.

13. Counsel for the applicant have filed a petition with 42 grounds of appeal which in my view are in no way frivolous and it can be said that the applicant does indeed have an arguable appeal. What was not demonstrated however is that the appeal has overwhelming chances of success as would warrant this court to grant the applicant bond without taking other issues into consideration.

14. On the issue of whether there are exceptional circumstances, Counsel for the Applicant attached a report by one Omboki Joshua (SPHNO) the In Charge of Inmates Medical Services Nairobi Remand Prison and two medical reports one by Dr. Philip Kisyoka Consultant Physician and Cardiologist and the other by Dr. Stephen Makau, Consultant Physician. The medical report by the Nairobi Remand Prison indicates that the applicant is currently admitted in the facility’s sickbay and is on medication for various complications including diabetes mellitus, hypertension and that he has developed movement restrictions since his incarceration. The report also indicates that disease progression has been made worse by his age and has progressed to his body organs. The other two reports confirm that the applicant indeed suffers from the medical conditions outlined in the letter from Prisons

15. While the three medical reports indeed confirm that the applicant is suffering from several ailments, I am of the view and there is in fact no evidence to the contrary, that the prison facilities are well equipped to treat and manage the illnesses that beset the applicant. Accordingly I find that no exceptional circumstances have been demonstrated to warrant this court to grant the applicant bail at this stage. My so saying finds support in the decision of Onyiengo J in the case of John Koyi Waluke and another v Republic [2020] eKLRthat:-

“83. Concerning his diabetic and hypertension condition, there was no evidence adduced to show that the prison’s facility is not capable of managing that condition, See Dominic Karanja v Republic (supra) where the court stated that ill health on its own is not an exceptional circumstance for one to be admitted on bail pending appeal unless proved that the prison’s facility is not capable of managing such ailment. For those reasons, that grounds also fails.”

16. As to whether the appeal is likely to be rendered nugatory by the applicant serving his term before the appeal is heard I wish to reassure the applicant and the Counsel that appeals are now heard expeditiously and that everything being constant this appeal shall be heard within the shortest time possible.

17. As for the applicant having complied with all the conditions for bail pending trial my finding is that the same ought not to be a consideration. My finding is supported by the holding of the Court of Appeal in the case of Peter Hinga Ngatho v Republic [2015] eKLRthat:-

“.....

(ii) The previous good character of the applicant and the hardship if any, facing the family were not exceptional or unusual factors. Ill health would also not constitute exceptional circumstances where there existed medical facilities for prisoners.

(iii) Solemn assertion by the 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

....”

18. Accordingly the application is dismissed. However taking cognizance of the applicant’s health this court directs that the appeal shall be expedited to be heard within the shortest time possible and by a copy of this ruling the Deputy Registrar of this court is hereby directed to forthwith call for the record of the lower court in order to prepare the Record of Appeal and bring up the appeal for admission without further delay. Counsel for the applicant should on their part file and serve the Petition of Appeal and Record of Appeal, if they have not done, so within 14 days of this Ruling. The application for bond pending appeal is otherwise dismissed.

SIGNED, DATED AND DELIVERED ELECTRONICALLY THIS 3RD DAY OF FEBRUARY 2022.

E. N. MAINA

JUDGE