[2022] KEHC 3107 (KLR)

Wambua v Republic (Criminal Appeal E079 of 2021) [2022] KEHC 3107 (KLR) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3107 (KLR)

Republic of Kenya

In the High Court at Machakos

Criminal Appeal E079 of 2021

GV Odunga, J

May 16, 2022

Between

Martin Mwangangi Wambua

Appellant

and

Republic

Respondent

Ruling

1. The appellant herein, Martin Mwangangi Wambua, was charged before the Mavoko Chief Magistrate’s Court in Criminal Case No. 373 of 2017 and convicted of the offence of causing grievous harm contrary to section 234 of the Penal Code. He was sentenced to 10 years in jail.

2. Aggrieved by the said decision he has lodged this appeal. Pending the hearing and determination of the appeal, he seeks that he be admitted to bail. According to him, his appeal has chances of success on the grounds that there was no sufficient evidence to warrant his conviction and that his sentence was excessive and illegal.

3. He contended that the charge sheet was defective in that the same did not cite Section 231 of the Penal Code which bears the element of mens rea for an offence of grievous harm under section 234 thereof. It was further averred that the complainant testified that they were strangers and as such there could not be any predetermination on the part of the appellant to cause any grievous harm to the complainant. Further, that the injuries suffered by the complainant ought to be attributed to a road traffic accident and/or the negligence of the complainant who admitted to opening the door to a moving vehicle thereby breaching a duty of care owed to himself, the appellant herein as well as other members of the public travelling in the said vehicle at the time.

4. The appellant has further averred that in the circumstances, the sentence met is rather excessive and as such there is a very real possibility that the reviewed sentence will be served substantially should this appeal succeed.

5. It was submitted on behalf of the Applicant that the said charge sheet accuses the applicant herein of unlawfully causing grievous harm to the complainant contrary to section 234 of the Penal Code. It was however contended that the particulars of the charge sheet follow the same pattern as in the definition hereinabove. It is therefore evident that the actus reus of the offence is that grievous harm did occur. The word “unlawfully” represents the mind of the accused at the time of commission of the offence. According to the applicant, because the mindset of the accused was invoked in the section of the law he is being accused to have breached, it was necessary to include within the said charge sheet the necessary section which contains the elements of mens rea required for upholding conviction on the basis of the said charge. In this regard, reliance was placed on Section 231 of the Penal Code and it was contended that the charge sheet, having failed to include section 231 as hereinabove, is thus defective in that the same exposed the applicant herein to a trial and conviction on an offence which requires the satisfaction of both mens rea and actus reus. Consequently, the applicant was prejudiced by the charge sheet which led to an unjust judgment condemning him to imprisonment without any evidence and/or proof of mens rea to the required standard and contrary to the available evidence adduced. This means that the entire substance of the charge was not within the knowledge of the applicant herein in that all the essential ingredients of the offence (both mens rea and actus reus) required to have been proved by the prosecution beyond reasonable doubt were omitted. Reference was made to Peris Wairimu Gichuru vs. Republic [2007]eKLR.

6. The Applicant further contended that in as much as the charge sheet has been shown to have been defective in nature, the Learned Trial Court proceeded on the basis of uncorroborated and manifestly contradictory statements and testimony from the prosecution witnesses which cannot remotely meet the standard of beyond reasonable doubt in proving the guilt of the applicant as by law provided. The learned trial Magistrate further failed to appreciate that the offence complained of was indeed an accident caused in part by the negligence of the complainant and that in any case, the existence of any quarrel cannot even be ascertained.

7. Being a first appeal, it was submitted that this Court is obligated to subject the evidence adduced to a fresh re-examination so as to arrive at its own findings. It was therefore submitted that the applicant herein has met the threshold for granting bail pending appeal in that he indeed has an arguable appeal with overwhelming chances of success.

8. As to the existence of exceptional circumstances, reliance was placed on the case of Chimambhai vs. Republic 1971 EA 343, and Dominic Karanja vs. Republic (1986) KLR 612, and it was submitted that there is a very real danger that a substantial part of the reviewed sentence will have been served by the applicant in the interim period as the appeal is being heard.

9. Further, the applicant has produced in evidence a medical report which confirms that he suffers from Uncontrolled Hypertension and Allergic Bronchitis, a condition that warrants his constant attendance at clinic urgently especially as the need arises. This condition, as has been confirmed by the said report is potentially fatal to the applicant should he not be able to receive the necessary treatment dutifully and expeditiously. Additionally, the applicant has complied with Sec 357 (1) of the Criminal Procedure Code by filing an appeal, therefore, on the right trajectory in seeking the court’s judicious exercise of the discretion to admit him to bail pending the hearing of the appeal. Having previously complied with bail terms it was submitted that the applicant herein is equally willing to comply to the bail terms as may be set by the Court.

10. According to the Applicant, having met the conditions necessary for admission to bail pending appeal, this Court ought to allow the application as prayed.

11. On behalf of the Respondent, the following grounds of opposition were filed:1)That the instant application does not meet the legal threshold for grant of orders sought.2)That bail pending appeal is discretional and the applicant’s innocence was compromised upon conviction.3)That the applicant has not demonstrated any peculiar or exceptional circumstance to warrant grant of the orders sought.4)That the intended appeal has no overwhelming chances of success as the prosecution proved their case beyond reasonable doubt at the trial.5)That there is no possibility of the sentence of 10 years met on the applicant being served before the appeal is heard.6)That grant of bail pending appeal under section 357(1) is discretionary and not absolute.7)That due to the long sentence that the applicant is facing, his chances of absconding are high.

12. Though the Respondents were directed to file their submissions within 14 days from 22nd March, 2022, none were filed within the prescribed time or at all.

Determination 13. I have considered the application and the affidavit in support thereof, the grounds of opposition thereto and the submissions filed.

14. Article 49(1)(h) of the Constitution provides that:-An accused person has the right…(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.

15. However, a different test applies where the matter before the Court is an application for release on bail pending the hearing of the appeal. Section 357(1) of the Criminal Procedure Code provides as follows: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.

16. It was therefore held in Masrani v R [1060] EA 321 that:“Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction.”

17. I therefore agree with the position in Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR where it was held that:“The right to bail is provided under Article 49(1) of the Constitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial. After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored. In the case of Jiv Raji Shah vs. R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:(1)Existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail.(2)It appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of a 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, then, a condition of granting bail will exist.Main criteria is that there is no difference between overwhelming chances of success and set of circumstances which disclose substantial merit in the appeal – being allowed, the particular circumstances and weight and relevance of the points to be argued.”

18. This position was restated in Mutua v R [1988] KLR 497, in which the Court of Appeal stated:“It must be remembered that an applicant for bail has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal.”

19. In Jivraj Shah v Republic [1986] KLR 605; [1986] eKLR, the Court of Appeal held that:“There is not a great deal of local authority on this matter and for our part such as we have seen and heard tends to support the view that the principal consideration is if there exist exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. 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 urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist. The decision in Somo v Republic [1972] E A 476 which was referred to by this court with approval in Criminal Application No NAI 14 of 1986, Daniel Dominic Karanja v Republic where the main criteria was stated to be the existence of overwhelming chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed. The proper approach is the consideration of the particular circumstances and the weight and relevance of the points to be argued.”

20. It is therefore clear that a different test from that applied in bail pending trial is applied in bail pending appeal. When considering an application for bail pending appeal, the Court has discretion in the matter which must be exercised judicially taking into consideration various factors as follows:(a)Whether the appeal has overwhelming chances of success. See Ademba v Republic [1983] KLR 442, Somo v R [1972] EA 476, Mutua v R [1988] KLR 497;(b)There are exceptional or unusual circumstances to warrant the Court’s exercise of its discretion. See Raghbir Singh Lamba v R [1958] EA 37; Jivraj Shah v R [1986] eKLR; Somo v R (supra); Mutua v R (supra);(c)There is a high probability of the sentence being served before the appeal is heard. See Chimabhai v R [1971] EA 343.

21. What constitute exceptional circumstances were dealt with in R v Kanji [1946] 22 KLR, where De Lestang, Ag.J (as he then was) held that:“The appellant’s appeal is not likely to be heard before the end of March or beginning of April by which time I am informed he shall have served one fourth to one-third of his sentence. The mere fact of delay in hearing an appeal is not of itself an exceptional circumstance, but it may become an exceptional circumstance when coupled with other factors. The good character of the appellant may, for example, together with the delay in hearing the appeal constitute an exceptional circumstance. The appellant in this case is a first offender and his appeal has been admitted to hearing showing thereby that it is not frivolous. In addition to that there is the fact that his co-accused, who is in no respect in different position from him as regards bail, has been admitted to bail.”

22. According to Trevelyan, J in Somo vs. R [1972] EA 476:“…the single fact of having been two identical applications with one being allowed and the other being refused was, of itself, an unusual and exceptional circumstance.”

23. Good character alone, however, it was held in the same case:“can never be enough. There is nothing exceptional or unusual in having such a character.”

24. The rationale for considering the chances of success of the appeal was given in Somo v R (supra) at page 480 as follows:“There is little if any point in granting the application if the appeal is not thought to have an overwhelming chance of being successful, at least to the extent that the sentence will be interfered with so that the applicant will be granted his liberty by the appeal court. I have used the word “overwhelming” deliberately for what I believe to be good reason. It seems to me that when these applications are considered it must never be forgotten that the presumption is that when the applicant was convicted, he was properly convicted. That is why, where he is undergoing a custodial sentence, he must demonstrate, if he wishes to anticipate the result of his appeal and secure his liberty forthwith, that there are exceptional or unusual circumstances in the case. That is why, when he relies on the ground that his appeal will prove successful, he must show that there is overwhelming probability that it will succeed.”

25. In this case, according to the applicant his appeal has chances of success on the grounds that there was no sufficient evidence to warrant his conviction. This is due to the fact that the complainant testified that they were strangers and as such there could not be any predetermination on the part of the appellant to cause any grievous harm to the complainant. It is further contended that the charge sheet was defective in that the same did not cite Section 231 of the Penal Code which bears the element of mens rea for an offence of grievous harm under section 234 thereof. Further, that the injuries suffered by the complainant ought to be attributed to a road traffic accident and/or the negligence of the complainant who admitted to opening the door to a moving vehicle thereby breaching a duty of care owed to himself, the appellant herein as well as other members of the public travelling in the said vehicle at the time.

26. While these contentions may well be sustained by the Court at the hearing of the appeal itself, I am not satisfied that they constitute overwhelming probability of success. Insufficiency of evidence is an allegation that Courts do deal with routinely and in order to make a finding therein, the appellate Court, particularly the first appellate Court is duty bound to analyse the evidence adduced before the trial court before arriving at its decision. I have noted that in this application, the applicant has extensively addressed this Court on the evidence adduced and invited the Court to do what is expected of the Court when hearing the appeal itself. With due respect to the applicant, at this stage, this Court is not expected to minutely examine the evidence presented before the trial court in order to arrive at a decision regarding the sufficiency or otherwise of the evidence adduced before the trial Court.

27. To constitute overwhelming probability of success, the applicant must show the Court, without the necessity of detailed analysis of the evidence, a glaring error committed by the trial Court such as a patently illegal sentence. Where such a decision can only be arrived at by a minute and protracted examination of the lower court record, it cannot be said that such an appeal has overwhelming chances of success since to do so would amount to invitation to the Court to usurp the position of the appellate court and to determine the appeal at the interlocutory stage.

28. There is a difference between an appeal that has prospects of success and one that that has overwhelming chances of success. While the latter may warrant the party being admitted to bail/bond during the pendency of the appeal, the former does not. In this case, it is my finding that the matter falls under the former and hence does not meet the threshold for admission of bail pending appeal.

29. I have considered the grounds of appeal and I am not satisfied that the said grounds disclose the existence of an appeal has overwhelming chances of success. Whereas the appellant may well succeed in urging the said grounds at the hearing of the appeal, I am not satisfied that the chances of the appeal succeeding can be said to be overwhelming. The grounds are the usual grounds and there is no ground that stands out as one that is very likely to succeed even before the same is argued based on the state of the record, which record has not even been placed before me.

30. It was further contended that in the circumstances, the sentence met is rather excessive and as such there is a very real possibility that the reviewed sentence will be served substantially should this appeal succeed. According to the learned trial magistrate, the appellant was liable to imprisonment for life. In the exercise of his undoubted discretion, he sentenced him to 10 years imprisonment. While the excess in the sentence is a matter of the appeal itself in this case I do not see how a sentence of 10 years imprisonment can be served before this appeal is heard and determined.

31. The applicant produced in evidence a medical report which confirms that he suffers from Uncontrolled Hypertension and Allergic Bronchitis, a condition that warrants his constant attendance at clinic urgently especially as the need arises. To the Applicant, this condition, as has been confirmed by the said report, is potentially fatal to the applicant should he not be able to receive the necessary treatment dutifully and expeditiously. The Court of Appeal in Daniel Dominic Karanja v Republic [1986] eKLRhowever, dealt with similar allegation as follows:“The most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty. The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicant and the hardship, if any, facing the wife and children of the applicant are not exceptional or unusual factors: see Somo v Republic [1972] E A 476. A solemn assertion by an applicant that he will not abscond if he is released is not sufficient ground, even with support of sureties, for releasing a convicted person on bail pending appeal. The applicant was certified to be fit by a doctor on September 23, 1986 and so no issue of illhealth arises. We are not to be taken to mean that ill-health per se would constitute an exceptional or unusual circumstance in every case. There exist medical facilities for prisoners in the country.”

32. In my view, the mere fact that the applicant believes that his appeal has chances of success does not necessarily amount to exceptional circumstances since appellants are only expected to lodge appeal where they believed that their appeals have chances of success. It requires more than such belief to satisfy the court that there are exceptional circumstances. As was stated in Somo vs. R (supra) the fact that the appeal is not frivolous is of no consequence on its own in support of the application though the fact that it is thought to be frivolous, on the other hand, is for consideration in favour of its rejection.

33. In light of the foregoing I find no merit in this application. Let the applicant expedite the process of the hearing of his appeal since he already has copies of the proceedings and judgement.

34. It is so ordered.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 16TH DAY OF MAY, 2022. G V ODUNGAJUDGEIn the presence of:Mr Nyaberi for Mr Nzei for the applicantMr Jamsumba for the RespondentCa Susan