[2023] KEHC 23981 (KLR)

Wango v Republic (Criminal Appeal E088 of 2021) [2023] KEHC 23981 (KLR) (Crim) (24 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23981 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Appeal E088 of 2021

DR Kavedza, J

October 24, 2023

Between

Frederick Mwangi Wango

Appellant

and

Republic

Respondent

Ruling

1. The appellant was charged with the offence of Defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2006. He was found guilty, convicted and sentenced to serve twenty years’ imprisonment. Being dissatisfied with the decision, he filed a petition of appeal dated 7th October 2021, and subsequently filed amended grounds of Appeal (undated).

2. Simultaneously, the appellant filed a chamber summons application dated 19th October 2023, seeking his release on reasonable bail and/or bond pending the hearing and determination of his appeal. The application is premised on the grounds that are reiterated in the supporting affidavit of the applicant, Fredrick Mwangi Wango. In the affidavit, the appellant averred that the appeal has reasonable chances of success and that he is apprehensive that unless granted bail, the appeal will be rendered nugatory, as he would have served most of the sentence and will be prejudiced should the court ultimately upholds his appeal.

3. Additionally, the appellant averred that he suffers from ulcers, which requires that he feed on a special diet, which is not available in prison; should he continue to be incarcerated, his health is likely to be jeopardized.

4. In response, Ms Akunja for the respondent opposed the application vide grounds of opposition dated 21st February, 2022. She averred that the application lacks merit and maintained that the applicant was properly convicted before the trial court. It was further her contention that the applicant has not demonstrated any special or unusual circumstances to warrant him to be granted bail pending appeal. She urged that the application lacks merit and the same ought to be dismissed in its entirety.

Issues for determination 5. I have considered the application and corresponding grounds of opposition. The main issue for determination is whether the applicant has met the threshold for the grant of bail pending the hearing and determination of his appeal.

Analysis and determination 6. The provision of law that applies to bail pending appeal is section 357 of the Criminal Procedure Code (Cap 75) Laws of Kenya, which provides as follows:“(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;”

7. The principles applicable in considering whether to grant bail pending an appeal are set out in the case of Jivrah Shah v Republic (1986) KLR 605, where the court laid down the following principles:“(1)1) The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.(2)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 argued and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists.(3)The main criteria is that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued.”

8. Under Article 49 of the Constitution of Kenya, an accused person who is facing a criminal charge has a right to bond because he is presumed to be innocent until proved guilty, unlike a case where one is already convicted. In the above cases, the courts also held that anticipated delay in the hearing of the appeal, together with other factors, might be grounds for grant of bail pending appeal.

9. I have carefully examined the grounds of appeal raised by the appellant. The applicant stated that appeal herein has a reasonable chance of success and one need only look at the determination and petition of appeal to see that the trial court erred in failing to consider relevant factors, and only took into consideration irrelevant factors, thus leading to miscarriage of justice.

10. The rationale for considering the chances of appeal were set out in Somo v Republic (1972) EA 480, where the court observed 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 a 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.”

11. In this case, I have considered the two (2) amended grounds of appeal raised in this appeal. However, I am not satisfied that the said grounds disclose the existence of an appeal with overwhelming chances of success. Whereas the appellant may succeed in arguing the said grounds at the hearing of the appeal, I am not satisfied that the chances of the appeal succeeding are overwhelming. The grounds are the usual grounds and no ground stands out as one that is very likely to succeed even before the same is argued, based on the state of the record.

12. As regards the exceptional circumstances, it is argued that the appellant’s appeal is likely to be determined after he has served most of his sentence. The appellant was sentenced to twenty years’ imprisonment. The appellant has only served two years and has a balance of eighteen years. The appellant’s apprehension, as I understood it is that the appeal will take long to be heard. However, it is my view that it is possible to have this appeal heard and determined expeditiously and without delay. This is in view of the fact that this court already directed the parties to file and serve their respective documents with respect to the appeal, that is, the record of appeal from the appellant and a response from the respondent.

13. The appellant also claimed to be suffering from ulcers and that he should be on a specific diet, which may be hard to maintain in prison. This is similarly not an exceptional matter, as the Prison facility has not been shown to be ill-equipped to deal with his condition. I also take judicial notice that prisoners who suffer from a similar condition as the appellant do exist in prisons within Kenya. I need not state that in a few bad cases, the prison authorities do transfer them to hospitals for special treatment whenever necessary. That being the case, he can continue receiving treatment in the same facility or any other as is within the prison requirements.

14. The upshot of the above analysis is that the applicant has not demonstrated the existence of exceptional or unusual circumstances to warrant the grant of bail pending appeal. The application for bail pending appeal is dismissed.It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 24TH DAY OF OCTOBER 2023. D. KAVEDZAJUDGEIn the presence of: