[2024] KECA 1273 (KLR)

Wekesa v Republic (Criminal Application E001 of 2024) [2024] KECA 1273 (KLR) (20 September 2024) (Ruling)

Neutral citation: [2024] KECA 1273 (KLR)

Republic of Kenya

In the Court of Appeal at Eldoret

Criminal Application E001 of 2024

FA Ochieng, LA Achode & WK Korir, JJA

September 20, 2024

Between

Samson Wanyonyi Wekesa

Applicant

and

Republic

Respondent

(An intended appeal arising out of the Judgment of the High court (Mrima J), delivered on 22nd September 2023 in Kitale HCCR Appeal No 81 of 2022)

Ruling

1. Samson Wanyonyi Wekesa the applicant herein approached this Court by way of Notice of Motion dated 8th January 2024 brought under Rule 5(2) (a), of the Court of Appeal Rules, 2022, seeking for substantive orders that:1. The Applicant be admitted to bail/bond pending the hearing and determination of his intended appeal.2. There be stay of further execution of the sentence imposed pending hearing of the intended appeal.

2. The application is premised on the grounds on its face and the supporting affidavit of even date sworn by the applicant. A summary of the averments is that the applicant was charged alongside three others in Kitale Chief Magistrate’s Court with the offence of arson contrary to Section 322(a) of the Penal Code. The particulars of the offence were that on 27th March 2019 at 1300 hrs. within Trans Nzoia County, the applicant together with the co-accused, willfully and intentionally set fire to a house (bungalow), tractor (Massey Ferguson), maize milling machine, maize store, cattle shed and a tractor trailer, all valued at Kshs 17,450,000/= (the property of Eunice Kamau).

3. The applicant and the co-accused pleaded not guilty and were subjected to full trial. At the conclusion of the trial they were found guilty as charged and convicted accordingly. They were each sentenced to serve 5 years imprisonment.

4. Aggrieved by the judgment, the applicant filed Criminal Appeal No. 81 of 2022 in Kitale High court against both conviction and sentence. The grounds in the Memorandum of appeal were that the evidence of his identification was not sufficient, the charge sheet was defective, the evidence as a whole was not sufficient to convict him and the burden of proof was shifted to him.

5. The appeal was opposed by the State. Mrima J considered the appeal and dismissed it in a judgment delivered on 22nd September 2023. The learned Judge reaffirmed the conviction and sentence of the lower court, cancelled the bond granted to the applicant pending the appeal and ordered him to be taken into custody to complete the 5 years imprisonment sentence.

6. The applicant was unhappy with the outcome of his appeal and he filed a Notice of Appeal on 27th September 2023, indicating his intention to file a second appeal against the decision of the High court to this Court. He states that he is yet to be supplied with the proceedings to enable him file the Record of Appeal. He has annexed a letter sent by his advocates, M/s Risper Arunga and Co Advocates to the Deputy Registrar of Kitale High Court, on the 27th of September 2023, requesting for certified copies of the proceedings and judgment.

7. The applicant then filed the current Notice of Motion dated 8th January 2024, seeking to be admitted to bail pending the hearing and determination of his intended appeal. He is also seeking an order of stay of execution of the sentence imposed, pending the hearing of the intended appeal.

8. The grounds of the application are that: the applicant is not a flight risk: he has a large family comprising of a wife and several children who depend on him as the sole breadwinner, he has abided with the bond terms of both the lower and the High court and will not therefore abscond and that he has a fixed abode at Waitaluk location within Trans Nzoia County. He avers that his Memorandum of Appeal has highlighted contentious and substantial issues of law regarding his conviction and sentence, warranting a stay of execution of the sentence, on the grounds that he has an arguable appeal.

9. In response to the application, the respondent filed a replying affidavit dated 21st February 2024, through M/s Jacklyne Kiptoo a Senior Assistant Director of Public Prosecutions (SADPP). Counsel avers that the Application lacks merit and does not meet the requisite legal threshold and principles for granting the orders sought. That the evidence tendered by the prosecution in the trial court was probative, well corroborated and sufficient to warrant the conviction arrived by the trial and affirmed by the Superior court.

10. The respondent opines that due to the nature of the offence, and the fact that the applicant having not succeeded in the first appeal, there is a strong indication that the Applicant’s chances of absconding are extremely high. Additionally, that the Applicant has not demonstrated any peculiar, unusual or exceptional circumstances to warrant grant of bail pending appeal, as the hardships faced by the Applicant’s family are not exceptional or unusual.

11. Further to the Application and Replying Affidavit, the respective parties filed their Written Submissions.

12. The Applicant filed his submissions dated 27th February 2024, through M/s Risper Arunga and Co Advocates. The Applicant urges that there is need to consider the circumstances as well as the weight and relevance of points that each case presents. He argues that the grounds in the intended appeal raise substantial issues of law, such as the probative value of the circumstantial evidence tendered by the prosecution on his identity. That failure to appreciate the probative value of such evidence can bring about miscarriage of justice, and is detrimental to his right to a fair trial. The applicant cites the cases of Simon Mwangi Kirika v Republic [2006] eKLR and Boniface Nganga v Republic [2008] eKLR to support his argument.

13. The SADPP filed submissions dated 22nd February 2024 on behalf of the respondent. The State counsel relies on the guidelines in the case of Dominic Karanja v Republic [1986] KLR 612 to argue that the applicant has not demonstrated that there are exceptional and unusual circumstances to warrant the grant of the order of bail/bond pending appeal. That having a large family of several children, adherence to previous bond terms and permanent abode, do not constitute exceptional circumstances for grant of bail/bond pending appeal.

14. The State Counsel also argues that the applicant has failed to demonstrate why he should be entitled to a stay of further execution of the sentence imposed pending the hearing of the intended second appeal. Further that the application dated 8th January 2024 is defective as it is supported by a defective affidavit, which does not indicate the year in which it was sworn. Thus, the application should be struck out.

15. We have carefully considered the grounds of the application, the reply thereto, the rival submissions and the law applicable. The starting point is to assess whether the applicant meets the legal threshold of the grant of bail pending before an appeal. The right to bail is provided under Article 49(1) of the Constitution.

16. In the case of Charles Owanga Aluoch vs. Director of Public Prosecutions [2015] eKLR 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.”

17. The principles for granting or denying bail/bond pending appeal were set out in Jivraj Shah v Republic [1986] KLR 605 , Ademba v Republic [1983] KLR, 442 and Dominic Karanja v Republic [1986] KLR 612. A summary of the principles include: The existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is just 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, the sentence or a substantial part of it will have been served by the time the appeal is heard.

18. We assess the grounds of the application to establish whether the threshold set out above has been met. The applicant’s justification of being the sole breadwinner for his family, having a large family, do not amount to exceptional, or unusual circumstances. In the South African case of S v Petersen 2008 (2) SACR it is stated that the word ‘exceptional’ is usually indicative of something that is ‘unusual, extraordinary, peculiar or simply different.’

19. Additionally, it was held in Peter Hinga Ngotho vs Republic [2015] eKLR, that;“The fact that the Applicant did not breach the bail condition in the lower Court, is not an exceptional circumstance to warrant a decision to admit an Applicant to Bail Pending Appeal”.Therefore, the applicant cannot rely on the fact that he adhered to the bond terms in the two courts below, as exceptional circumstances for the grant of bail pending appeal.

20. The second principle states that the applicant should demonstrate that the intended appeal should raise substantial points of law. The applicant is contesting the sufficiency of the evidence concerning his identification. However, he has not availed the record of appeal for us to consider. The trial court found that the evidence was sufficient and so did the superior court on first appeal. In any case this does not constitute a substantial point of law that would require consideration on second appeal.

21. Prima facie therefore, from the totality of the circumstances it does not appear that the appeal is likely to be successful, on account of the said ground as a substantial point of law to be urged. We shall not however, delve into the merits or demerits of the appeal lest we embarrass the bench that will be seized of the appeal.

22. Lastly, we consider that the applicant only started serving his sentence last year following the High court judgement that was delivered on 22nd September 2023. Bail is a constitutional right where one is awaiting trial for the reason of the presumption of innocence. After conviction that right is at the court’s discretion and upon considering the circumstances of the application. He is represented and should focus on obtaining the record of appeal so that the intended appeal is listed for hearing as soon as possible.Upon evaluating the application, we find that it does not satisfy the threshold for granting bail/bond pending appeal. Consequently, the application dated 8th January 2024 is found to lack merit and is dismissed in its entirety.

DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF SEPTEMBER 2024. F. OCHIENG………………………JUDGE OF APPEALL. ACHODE…………………………JUDGE OF APPEALW. KORIR…………………………JUDGE OF APPEALI certify that this is a true copy of the original SignedDEPUTY REGISTRAR