[2018] KEHC 7769 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CRIMINAL APPEAL NO. 64 OF 2017

STEPHEN MWANIKI MACHARIA.......APPELLANT/APPLICANT

VERSUS

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

RULING (Bail pending appeal)

Before me is a Notice of Motion dated 17th October 2017 brought under certificate of urgency of Gori Advocate.

It is premised under Article 49(1)(h) of the Constitution of Kenya 2010, and section 357 of the Criminal Procedure Code, and all other enabling provisions of the law.

It seeks orders;

1. That the appellant be admitted to bail pending the hearing and determination of the appeal herein

2. That costs of the application be provided for.

The grounds for the application are set out on the face of the application as follows;

a. That the appeal has overwhelming chances of success

b. That the conviction is based on a bailable offence

c. That it is in the interests of justice that the applicant be granted bail pending appeal.

d. that the appellant is serving an illegal sentence

e. that the use of criminal prosecution for the recovery of civil debt was wrong and unlawful

f. that the dispute between the complainant and the appellant was purely contractual civil matter that required civil remedies.

The application is supported by the affidavit of George Morara Gori the advocate for the appellant/applicant, and the annexed part of proceedings and judgment of Hon W. Kagendo Chief Magistrate in Nyeri CMCRC no. 53 of 2015 delivered on 15th August 2017.

The application is opposed and the ODPP filed a replying affidavit through Mr. Gitonga Muranga, prosecuting counsel.

The appellant/applicant was charged with the offence of obtaining money by false pretences contrary to section 313 of the Penal Code. It was alleged that on diverse dates between September 14th 2014 and November 28th 2014 at Nyeri Township jointly with others not before the court, with intent to defraud obtained Ksh 3. 1 million from Erastus Waweru Muchiri by falsely pretending that he could import a Toyota Prado 2007 model from Japan for him, a fact he knew to be false.

After the trial he was found guilty and on 26th September 2017, sentenced to serve 3years’ imprisonment. It is against that conviction and sentence he has brought this appeal.

In his affidavit in support of the motion Mr. Gori reiterates the grounds on the face of the application and depones that the appellant has already filed his appeal against the conviction and sentence. That the applicant, a first offender was sentenced to three years’ imprisonment without the option of fine, part of which he has already served and in any event he had been out on a bond of Ksh 200,000 with a surety during the trial in the lower court, and he was absolutely not a flight risk.

He relies on several authorities.

1. Criminal Appeal no. 200 of 2012 Joseph Wanyonyi Wafukho vs. R

2. Criminal Appeal no. 2 of 2015 Ribanex Caxton Awita vs. R

3. Criminal Application 1. of 2013 Arvind Patel vs. Uganda

4. Criminal Appeal no. 35 of 2016 Jeremiah Wachira Muchiri vs. R

5. Criminal Appeal no. 50 of 2013 Samuel Macharia Njagi vs. R

The grounds for opposing he application as set out in the replying affidavit of Gitonga Muranga prosecution counsel are that;

1. That there is no constitutional right to the presumption of innocence in an application for bail pending appeal

2. The primary consideration for the granting of bail pending appeal is the existence of exceptional or unusual circumstances neither of which has been deponed by the appellant

3. Whether, prima facie, the appeal is likely to be successful see Ademba vs. Republic (1983) KLR 442

4. That there was no anticipated delay in the hearing of the appeal seeChimambai vs. R (1971 ) EA 343

In his oral submissions, Mr. Kinuthia holding brief for Mr. Gori, reiterated the grounds for the application submitting that the grounds to consider for such an application are well set out in the case of Arvind vs. Uganda. He urged the court to consider the PBR.

Mr. Muranga reiterated the grounds in the replying affidavit and submitted that it was not necessary for the court to consider a Pre Bail Report in an application for bail pending appeal. He submitted that it was not necessary to establish compelling reasons in such an application. He referred the court to the case of Criminal Appeal no. 100 of 2013 Minjia Michuba vs. R , he rejected the appellant’s assertions that this was a case of civil nature or sale of goods arguing that it was a case of obtaining by false pretences. That the appellant had been given sufficient time by the lower court to make good the loss to the complainant at his behest but had not honored his own promises. He urged the court to impose stiff bond terms of not less than 3. 1 million in the event the court was so inclined.

In a brief rejoinder Mr. Kinuthia pointed out that it was not in the realm of the prosecution to direct the court on the amount of bail to be granted; that the prosecution could not just oppose bail without any reasons; and that it was important for the court to look at the PBR.

Section 357 of the Criminal Procedure Code provides for admission to bail or suspension of sentence pending appeal. It states at sub section (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:

Bail pending appeal is a recourse available in law to an accused person already convicted of an offence and serving sentence.

In Gerald Macharia Githuka vs Republic Criminal Appeal No. 119 of 2004, the Court stated;

‘The cornerstone of the justice system is that no one will be punished without the benefit of due process including the right to exhaust the right to appeal. Incarceration before trial or pending hearing of an appeal cuts against this principle… ‘

My humble view is that the right to bail pending trial is also Constitutional right under Article 49 of the Constitution which provides for the rights of arrested persons. These include the right;

“(1) (h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”

The main difference between bail pending trial or charge as indicated at Article 49(1) h) and bail pending appeal under section 357 is that the appellant has already been found guilty and does not enjoy the presumption of innocence. This can be seen in the words of by Haris J in Chimambhai vs Republic (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. ......" (emphasis added).

These words are in resonance with the Constitutional provision that an accused person has the right, if convicted, to appeal to, or apply for review by, a higher court as prescribed by law at article 50(2) (q). This is among the constitutional rights under article 50 that collectively amount to the right to a fair trial.

Thus, although the right to bail pending appeal is not specifically provided for under this Article 49(1) (h), this provision has been applied in numerous cases to support the same. I would add that Article 51 of the Constitution which provides for the rights of persons detained, held in custody or imprisoned clearly states at sub article (1) that such a person;

… retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned.

The person who is imprisoned will appear in court on an application for review, revision, appeal or retrial. Hence, in my view, one of those rights referred to above, is the right to bail pending these proceedings, and the only limitation would be the existence of ‘compelling reasons’ or as they were cited with approval from Chimambhai in Arvind ‘particular circumstances’.

These particular circumstances have been prescribed again in numerous cases as conditions for granting bail pending appeal. A search at kenyalaw.org brings up number of decisions that have cited the case of Arvind Patel -vs- Uganda S.C Cr. Appeal No. 1 of 2003 from where I also draw guidance, where the Supreme Court of Uganda, Justice Oder, set them out as:

1. The character of the offender

2. Whether the applicant is or not a first offender;

3. Whether the offence of which the applicant is convicted involved personal violence;

4. The appeal must not be frivolous and has reasonable chance of success;

5. The possibility of substantial delay in the determination of appeal and;

6. Whether the applicant complied with bail conditions granted before the applicant's conviction during the pendency of the appeal.

The same court also stated that an applicant did not have to demonstrate all these considerations in order to be granted bail. A combination of two or more of the conditions would be sufficient.

This is a clear movement from the previous very strict approach to the principles applicable to bail pending appeal where for instance an appellant would be required to establish the existence of exceptional and unusual circumstances.

(See ruling by Mativo J in Samuel Macharia Njagi v Republic [2013] eKLR).

The applicant would also need to demonstrate that his appeal had high chances of success.

I have perused the petition of appeal filed on the 10th of October 2017. He intends to attack the conviction and sentence on the ground that the court did not consider that he was in a contractual relationship with the complainant and complainant had civil remedies, further that he was a first offender. I do not think the appeal is frivolous.

He was sentenced in September 2017, and will be entering his 6 month in prison. The appeal has no started hence there is the possibility that he could have served quite a bit of the sentence by the time the appeal is heard.

The applicant has complied with the provisions of section 357(1) of the Criminal Procedure Code and has filed an appeal.

I ordered for and have also considered the pre bail report. This report is a PRE BAIL REPORT. It does not matter what bail or what stage. It is not all about the establishment of compelling reasons as visualized by Art 49 (1) (h). It is and independent source of information, expected to be neutral, which also serves the purpose of painting for the court, a social, familial and community picture for the court of the applicant. These factors are a useful especially in terms of the conditions to accompany the bond or bail if granted. Hence a PBR is not just relevant to the initial bond/bail application. In my view it serves a purpose not only there but also in the applications for review of bond terms, and in this case, bail pending appeal.

I have considered the PBR filed on the 20th November 2017. Those interviewed included the area assistant chief, members of the family and the complainant. The complainant had no kind words to describe the appellant, but who had no objection to the appellant being released on bond. The appellant has strong family ties with a wife and three children. His brother is willing to stand surety for him.

I am however concerned. The report appears to me to be an arm chair report. The appellant hails from Mbeere District, Kiambere Location Ntharawe sub location. It was prepared by a probation officer by the name L.K. Wanjohi from Nyeri Central. It has gaps identified here below, that make it unreliable.

a. It does not contain the contacts of any of the interviewees, and especially the local administrators creating the impression that no one actually spoke to them.

b. The information on the family and their contacts is scanty. There are no specifics. Why? What is the appellant afraid of? The appellant is said to be the 1st born of 9 siblings. They are not mentioned or their whereabouts and contacts. Even the brother willing to stand surety is mentioned in passing. There are no details

c. The appellant’s own nuclear family is also only vaguely described. There are no details, making them untraceable.

d. The appellants own earlier back ground is scanty. Where he went to school etc.

e. Of great relevance is the fact that there is no indication that the local probation and aftercare office was involved. Considering the nature of the application it was necessary in my view for a home visit to be made. The officer makes a vague referral to ‘rural home’. Where is that?

f. The involvement of the victim is a constitutional right. The report is vague on the same.

Being out on bond or bail involves an undertaking that the appellant will be available for the appeal and whatever the outcome. It cannot be an excuse to merely run away from a lawful existing sentence.

It is important for the court to be supplied with the full information before final orders can issue.

I order therefore that the County Director, Nyeri County Probation and After Care Services to take up this matter and ensure that a proper supplementary report, in the appropriate format, covering the areas pointed out is provided to this court in the next two weeks.

This order be extracted and the Deputy Registrar to ensure it is served in good time to enable compliance.

Dated, delivered and signed this 15th day of February 2018 at Nyeri.

Teresia M. Matheka

Judge

In the presence of:

Court Assistant Hariet

Mr. Gori for appellant

Ms. Jebet for state

Appellant present

Mention on the 5th March 2018 to confirm compliance by the Department of Probation and After Care.