[2017] KEHC 9637 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPEAL NO. 76 OF 2017

ZACHARY NGARI…………….......………..APPLICANT

VERSUS

REPUBLIC……………………………....RESPONDENT

(Being an application for bail pending appeal)

RULING

The Applicant was charged and convicted for the offence of manslaughter. It was alleged that on 20th February, 2013 along Likoni Road Industrial Area within Nairobi County unlawfully killed No. 51782 Senior Sergeant Timothy Kaingu. He was sentenced to five years imprisonment. He has preferred the instant appeal against which this application is premised. By Notice of Motion dated 13th of July, 2017, he pleads with the court to release him on bail or bond pending the hearing and determination of the appeal. The main grounds on which the application is premised is that the circumstantial evidence on which the Applicant was convicted did not meet the threshold set by the law to warrant a conviction. Secondly, that the sentence imposed was manifestly excessive in the circumstances. The application is supported by the affidavit of Edwin N. Mugu, advocate on record for the Applicant sworn on 13th July, 2017. Annexed to the affidavit are certified copies of proceeding and judgment before the trial court.

The application was canvassed by way of oral submissions. Learned counsel for the Applicant Mr. Mugu went into details enunciating the grounds on which the Applicant thinks that the circumstantial evidence was not sufficient to found a conviction. In brief, he stated that the Applicant and three other officers were on patrol when they received a call that some robbers had robbed of a Range Rover motor vehicle and two persons were being held hostage in the vehicle. The deceased was the driver of the vehicle and seated next to him was a Corporal Kubai. The Applicant sat behind with another Police Officer. They then followed the stolen motor vehicle. Only one of the officers, PW1 testified. His testimony was that when they approached the stolen motor vehicle, he heard gun fire which seemed to come from the police motor vehicle. He dived on the floor of the vehicle and was not able to tell who was shooting. Thereafter, he walked to the driver’s side where he found the deceased head slumped on the steering wheel and he shouted that they had shot him. There was no mention of a shootout between the robbers and the police but the robbers escaped. He contrasted this evidence with the report made at Embakassi Police Station by Corporal Kubai vide OB No. 38/20/2/2013 in which he indicated that there was a shootout between the police and the robbers. That indeed this OB extract was referred to by DW2 who was also a police officer. According to the Applicant’s counsel, the contradicting evidence ought to have been resolved in favour of the Applicant. In addition, it was the counsel’s view that the learned trial magistrate failed to take into account the fact that the Applicant’s evidence in defence corroborated the report made to the police by Corporal Kubai.

The other aspect raised was that after the analysis of a bullet head recovered in the police vehicle, it was not possible for the police to conclude or make a finding as to who exactly shot the deceased. In all circumstances, it was the submission of the counsel that the failure to call Corporal Kubai weakened to prosecution case. Instead, the learned trial magistrate held that the failure to call the evidence was not fatal or prejudicial to the prosecution case. It is the case for the complainant that only Corporal Kubai could have confirmed whether or not there was a shootout. The learned magistrate therefore erred in finding that the Applicant was trigger happy and that he is the one who killed the deceased.

Counsel further submitted that even if the court found that the Applicant was responsible for the death of the deceased, in the circumstances of the case, the sentence of five years imprisonment was excessive. Counsel also urged the court to take into account that after the incident, the Applicant was shot by the robbers and has since been undergoing treatment at Mama Lucy Hospital. The court was asked to look at the medical documents annexed to the application.

Leaned State Counsel, Ms. Atina opposed the application. She submitted that the Applicant has not demonstrated that the appeal had any chance of success. On evidence, she submitted that it was clear that there was no shoot out between the police and the robbers and that he Applicant shot the decease without taking into consideration ethical requirements of restraint. On which firearm shot the deceased, Ms. Atina submitted that the ballistic expert report produced in court did prove that the fatal bullet was fired from the firearm of the Applicant. In addition, it was established that it is only the Applicant who fired on that day and the bullet that shot the deceased was fired from the side he sat. In addition, the pathologist who conducted a postmortem on the body of the deceased confirmed that the bullet was fired from an AK47 which was the firearm with the Applicant as opposed to a pistol and also that the bullet exited on the right side.

On unusual circumstances existing, Miss Atina submitted that no evidence had been tendered before the court to demonstrate that the Appellant suffered injuries from a bullet wound after the incident. On sentence, she submitted that the same was sufficient and that the Applicant had not served substantial part of it to warrant the grant of bail pending appeal.

Mr. Mugu in rejoinder submitted that the court should exercise its discretion in granting the order sought. He in particular urged the court to hold that the failure to call Corporal Kubai substantially weakened the prosecution case. Further that the evidence of PW2 was clear that the bullet recovered from the scene could not be associated with the riffles of police officers who were in the vehicle. In addition, the pathologist’s report indicated that the shot did not come from the side that the Applicant was. On medical report, he submitted that it was annexed to the Petition of Appeal.

I have accordingly considered the application and the respective rival submissions. The law is now settled on the facts that the court should consider in an application of bail pending appeal. See the case of Jivraj Shah vs Republic [1986] eKLR in which the Court of Appeal held that:

“1. The principle consideration in an application for bail pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interests 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 urged and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist.

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.”

On the success of the appeal, I have looked at the evidence of the prosecution as well as the defence case. It is factual that the Applicant has raised heavy issues that will require a determination in the appeal. Whereas at this stage, prima facie, the court is of the view that the conviction was justified, I would hesitate to make a thorough evaluation of the evidence for the fear of pre-empting the results of the appeal. That said, the court is of the view that the arguments are not superfluous. However, it is clear that the deceased was shot in the course of his duty. Equally, the Applicant was arrested and charged for an offence committed in the course of his duty and more so at a time when they were performing duties of maintaining law and order and therefore safeguard the public from insecurity. Taking into consideration these circumstances it is the view of the court that the sentence imposed was harsh and excessive. What most likely happened was a panic case, in defence fearing that the robbers were shooting at them (police officers). Such a case ought to be meted with leniency. Accordingly, the deceased died in very unfortunate circumstances. I will not therefore hesitate to hold that this was a case that will likely succeed on sentence.

With this in mind, I take into account that currently, until mid-November, only one judge will be serving in the appeals division. The instant appeal being of year 2017 is unlikely to be heard in the nearest months. For this reason, so as to forestall the Applicant serving a substantial part of his sentence before the appeal is heard and determined, I will allow the application.

In sum, the application succeeds with orders that the Applicant is admitted to bail pending appeal. He shall deposit a cash bail of Kshs. 100,000/= pending the hearing and determination of the instant appeal.

DATED and DELIVERED this 3rd October, 2017

G.W. NGENYE-MACHARIA

JUDGE

In the present of:

1. Applicant person

2. M/s Atina for the Respondent