[2022] KEHC 11671 (KLR)

Wanjiku v Republic (Criminal Appeal E114 of 2021) [2022] KEHC 11671 (KLR) (9 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11671 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Appeal E114 of 2021

RB Ngetich, J

June 9, 2022

Between

Emmanuel Nuthu Wanjiku

Appellant

and

Republic

Respondent

(Originating from Thika chief magistrate court Case No E031 of 2021)

Ruling

1. The applicant Emmanuel Nuthu Wanjiku was charged in Thika chief magistrate court Case No E031 of 2021, with the offence of defilement contrary to section 8(1) (4) of the Sexual Offences Act.

2. He was also charged with alternative count of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. He pleaded not guilty to the main charge and the alternative charge. The trial proceeded and the applicant was convicted of the main charge of defilement and sentenced to serve 15 years imprisonment.

3. The applicant being aggrieved by the conviction and sentence, filed appeal and pending hearing and determination of the appeal,he filed application dated January 24, 2022 seeking to be released on bail pending appeal on the following grounds:-a.That the applicant was sentenced to 15 years in prison.b.That the applicant was dissatisfied with the conviction and has lodged an appeal.c.That the appeal has a high chance of success.d.There exist some unusual circumstances surrounding the case that this court can conclude its fair and in the interest of justice to grant bail/bond.e.That unless the application is heard and determined the applicant's right to education will be jeopardized.f.That the applicant's primary and secondary education will go to waste if he is not allowed to further his education by joining the Amboseli Institute of Hospitality and Technology.g.That the applicant is not indolent in prosecuting the appeal.h.That the conviction is based on a bail able offence and the appellant was admitted to bond of Kshs500,000/= in the lower court which he religiously abided to in the course of the trial.i.That the application has been filed without any delay.

4. The application is filed together with a supporting affidavit sworn by the applicant in whom he reiterates the grounds of the application.

5. The application was dispensed by way of written submissions.

Applicant’s Submissions 6. In his submissions dated April 4, 2022, the applicant stated that this court has the discretion to grant bail pending the hearing of the appeal and relied on section 357 (1) of the Criminal Procedure Code, Article 50(2) (g) of the Constitution of Kenya 2010. The applicant also cited the case of Gerald Macharia Githuka vs Republic, Criminal Appeal No 119 of 2004 where the court held as follows:-“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. Re incarceration before trial pending hearing of an appeal cuts against this principle”

7. The applicant also cited the case of Arvind Patel vs Uganda SC Cr Appeal No 1 of 2003, where the court sets out the threshold for granting bail pending appeal.

8. The applicant submitted that the appeal has overwhelming chances of success, and he will prove to the court that the prosecution did not prove the main ingredients of the charge. The applicant faults the trial court for relying on the pregnancy test to prove the ingredient of penetration rather than conducting a DNA test.

9. The applicant further submitted that the age of the victim was not properly proved during the trial and if he is confined to prison, his right to education will be prejudiced in the circumstances if he fails to join the institution for advanced learning.

10. The applicant argues that the appeal is based on exceptional and unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail/bond pending the determination of the appeal. He urged the court to allow the application as prayed.

Respondents Submissions 11. The state opposed the application and filed submissions on April 1, 2022 and submitted that the court has discretion to grant bail pending appeal; and cited the case of Charles Owanga Alouch vs Director of private prosecution(2015) EKLR where the court stated as follows:-“bail is a constitutional right where one is awaiting trial. After conviction, that right is at the courts’ discretion and upon considering the circumstances of the application.”

12. The state counsel urged this court to take into consideration the fact that the appellant is a convict having been tried by a court of competent jurisdiction as the right to bail goes hand in hand with the right of presumption of innocence until proven guilty.

13. The respondent further submitted that the application is devoid of merit as the appellant has not raised exceptional circumstances or points out specific points of law that would increase the chances of success; that it is not sufficient for the appellant to state that he has an overwhelming chances of success but the applicant ought to demonstrate to the court that the appeal is likely to succeed on account of specified points of law.

14. The respondent further submitted that the appellant ought to demonstrate that he will have served a substantial part of the sentence by the time the appeal is heard and submitted that the time the appeal will take to be determined will not cause prejudice to the appellant.

15. The respondent relied on the case of Davis Kipkoech vs Republic (2021) eKLR where the court stated as follows:-“further I have, as stated before, observed that there are no exceptional circumstances that would require court to grant bail. I am persuaded that the interests of justice will be served where the applicant pursues his appeal and obtains a final determination expeditiously.”

16. The respondent further submitted that the applicant can pursue his studies under the auspices of the prison service which is mandated to train and educate convicts and the grounds raised in the application do not meet the threshold of allowing the application.

17. That the assertion by the applicant that he is not a flight risk and he faithfully complied with the bail terms in the trial court is not sufficient ground to grant bail pending appeal and cited the case of Peter Hinga Ngatho vs Republic (2015) eKLR where it was held as follows:-“the fact that the applicant did not breach bail conditions in the court below, is not an exceptional circumstance which can warrant a decisions to admit an application to bail pending appeal”

18. The respondent urged this court to dismiss the application.

Analysis And Determination 19. I have considered averments in the affidavit in support of the application and submissions filed by parties herein and wish to consider whether the applicant has demonstrated that he has met the requirements for grant of bond pending appeal. Application for bond pending appeal is governed by section 357(1) of the Criminal Procedure Code which provides:-“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.”

20. In the case of Charles Owanga Alouch vs Director of Public Prosecutions [2015] eKLR it was held as follows:-“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:a.Existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bail.b.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.

21. I have considered the circumstances raised in this application to urge this court to consider exercising its discretion to allow bond pending appeal. The applicant aver that he needs to further his studies. I take judicial notice of the fact that inmates are facilitated to further their studies while in prison. Inmates who have performed well in the national examination have always been given limelight when national exams are released. The applicant’s studies will not theferefore be cut shot as he will be given opportunity to further his studies while in prison.

22. The sentence imposed is 15 years and the applicant will not serve substantial sentence at the time appeal will be concluded. As to merits of the appeal, in my view, it woud not be appropriate for me to consider at this stage.

23. From the foregoing, my finding is that the applicant has not raised exceptional circumstances to warrant the court to grant bail pending appeal. I am of the view that in the alternative the appeal be expedited.

24. Final Orders1. Application for bond pending appeal is hereby dismissed.2. Appeal to be expedited.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 9TH DAY OF JUNE, 2022. ...........................RACHEL NGETICHJUDGEIn the Presence of:Kinyua - Court ClerkMr. Kimani holding brief for Mr. MartinMaina for Appellant/ApplicantMr. Gacharia for State