The applicant was charged with the offence of Incest contrary to Section 20 (1) of the Sexual Offences Act No. 3 of 2006. He was tried, convicted and sentenced to serve a term of 10 years imprisonment.
He has since filed Criminal Appeal No. E311 of 2023 which is pending hearing and determination.
The applicant by way of a Notice of Motion dated 8 th November 2024 has moved this court for admission to Bail pending the hearing and determination of his appeal. He further seeks that the bail terms be similar to the bail terms granted by the Lower Court during the trial.
In the alternative the applicant has also prayed that this court be pleased to order the stay or suspension of the sentence in Milimani CMs court SO No. 10 of 2017 in which he was sentenced to serve 10 years imprisonment.
The Notice of motion is supported by an affidavit sworn by the applicant on 8 th November 2024 in which he states the following; “
THAT I was initially admitted to bail by the trial Court and I never jumped the same and I am ready and willing to abide by the bond terms that may be imposed by this Honourable Court.
THAT I have serious medical conditions that may jeopardize me if I continue to remain in prison as I am diabetic, hypersensitive and asthmatic. (annexed hereto and marked "AHS-1' is a copy of the medical report attesting as much)
THAT cognizant of the foregoing, I was even transferred from Industrial Area Prison to Kamiti Maximum Prison in an effort to get me better healthcare but that has not been of much help to me.
THAT I am also a senior citizen of 63 years; I am a person of advanced age living with serious medical conditions aforesaid and my continued stay in prison will only exacerbate my situation hence the humble prayer for the Honourable Court's very urgent intervention.
THAT additionally, I am a family man and my family is unable to afford basic needs as a result of my incarceration.
THAT during trial, while out on bail, I always attended Court religiously and I am, therefore, not a flight risk nor will I abscond Court.
THAT the trial court's proceedings have not been availed despite having innumerably requested for them and in light of the obtaining delay, and taking into consideration my advanced age and medical condition, it is, therefore, fair and just that the Honourable Court be pleased to certify the matter as urgent and grant me bail pending appeal on reasonable grounds.
THAT I am, therefore, apprehensive that the appeal may take a long time before it is heard and determined, hence the need for the Honourable Court's intervention with uttermost urgency and grant the prayers sought in the Application filed herewith taking into consideration my dire need for medical attention with the help of my family.
THAT I have an arguable appeal with overwhelming chances of success and that my Petition of Appeal raises triable questions of law and fact and is replete with justiciable grounds that are arguable on appeal.
THAT I have a known permanent place of abode within Nairobi County, where my family resides and as such, he is not likely to abscond court.
THAT I am not a flight risk because I have a known permanent place of abode within Nairobi County.
THAT I shall not abscond court and shall submit to the jurisdiction of this Honourable as and when so required.
THAT I am ready and willing to abide by the bail terms that the Honourable Court shall issue.
THAT I undertake to attend all court proceedings whenever and wherever required.
THAT in consideration of my ill health and the grounds stated herein, it is in the interest of justice and fairness that the orders sought herein be granted.
THAT unless this Honourable Court urgently intervenes and grants the orders sought, I shall suffer irreparable loss and damage.
THAT unless this Honourable Court intervenes with uttermost alacrity and certifies this Application Urgent, there is real danger that my family will continue to bear the brunt of my incarceration whereas my health will continue to deteriorate.
THAT there is absolutely no perceivable or actual prejudice that shall be suffered by the Respondent and it is the interest of justice that the orders sought herein be granted pending determination of the Appeal herein.
The applicants Notice of motion primarily raises 3 issues namely:
Whether there are exceptional circumstances laid out by the applicant to warrant the grant of bail pending appeal
Whether there is a likelihood of undue delay of the hearing of the appeal which may prejudice the applicant.
Whether the applicants appeal has overwhelming chances of success.
The law on bail pending appeal is that the court in determining the application should be mindful of the fact that it is dealing with a person who is a convict and has already lost the advantage of the presumption of innocence under Article 50 of the Constitution.
It is therefore necessary for the court to be satisfied that the appeal by the applicant has overwhelming chances of success and by failing to grant bail pending appeal the applicant would be prejudiced if the appeal eventually succeeds.
It is the duty of the applicant to demonstrate to the court beyond peradventure that in all likelihood his appeal would succeed thus by continuing to hold him in prison pending the hearing of the appeal the court would be subjecting him to serve a prison term that is not justifiable in law.
For an applicant to succeed on the ground of overwhelming chances of success he should persuade the court that based on the evidence available the conviction against him cannot be sustained or at least point out a point of law on the basis of which his appeal would be allowed.
The applicant in this matter made no attempt to highlight portions of evidence that in his view, if taken into account by the appellate court, the court would most likely be inclined to allow the appeal. The applicant did not also canvass any matter of law that would most likely lead the court to a conclusion that his conviction was not merited.
The application cannot therefore succeed on that ground.
Further, an applicant seeking bail pending appeal may also succeed if he demonstrates to the appellate court that there exist exceptional circumstances that would merit his release on bail pending appeal.
The exceptional circumstances may include ill health such as what the applicant has raised in the instant application. However, for the applicant to succeed on this ground he must be able to demonstrate that the nature of the health issue complained of, is such that it cannot be handled within the prison health facility thus necessitating his immediate release to seek medical care outside the prison. It would therefore require a medical report to support the ground of exceptional circumstances predicated upon ill health.
In the instant case the applicant has annexed a medical report dated 18 th of October 2024 in which the doctor says the applicant is diabetic, hypertensive and allegedly asthmatic. Further, the doctor stated that the applicant needs constant medical care and reviews. The report is dated 18 th of October 2024 and a look at the proceedings reveal that the applicant was convicted on the 2 nd of November 2023 meaning therefore he has all along been in prison custody.
It is therefore not clear to this court from a reading of the report whether the conditions noted by the doctor are not conditions that can be adequately handled within the prison environment. At least the doctor has not declared so in his report.
The applicant’s application cannot therefore succeed on the basis of a medical report which was apparently prepared almost a year after incarceration and that there is no evidence to show that the prison facility cannot provide the care needed.
In Mkirani v Republic (Criminal Appeal E010 of 2021) [2021] KEHC 300 (KLR ) the judge quoted the Supreme Court of India in the case of Krishnan v The People {SCZ 19 of 2011}, {2011} ZMSC 17 where the court enumerated the following conditions to be satisfied in an application for bail pending hearing of an appeal:
“i. Bail is granted at the discretion of the court.
ii. The court must be satisfied that there are exceptional circumstances that are disclosed in the application.
iii. The fact that the appellant due to delay in determining the appeal may, have served a substantial part of his sentence by the time his appeal is heard, is one such exceptional circumstance. Each case is considered on its merits, depending on what may be presented as exceptional circumstances.
iv. It is important to bear in mind that in an application for bail pending appeal, the Court is dealing with a convict, and sufficient reasons must therefore exist before such a convict can be released on bail pending appeal.
v. It is not for the court to delve into the merits of each ground. But it suffices that all the grounds are examined, and a conclusion is made that prima facie the prospects of success of the appeal are dim.
vi. The fact that the applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant to admit an applicant to bail pending appeal."
The court in line with the authority cited above is left to consider whether the appellant is likely to serve a substantial part of his sentence before the appeal can be heard and determined. The answer to that question is a emphatic no. The proceedings of the lower court are already typed and the appellant has already filed his record of appeal thus the matter is ripe for hearing. The court therefore finds no justifiable cause to admit the appellant to bail pending appeal on that ground.
Secondly, the applicant was sentenced to serve a term of 10 years imprisonment thus considering that the appeal has already been admitted nothing stops the appellant from setting down the appeal for hearing within the shortest time possible thus obviating the danger of serving a substantial part of the sentence.
In the end this court finds that the application has no merit and the same is hereby dismissed with an order that parties to the appeal do take the hearing date for the appeal immediately.
It is so ordered.
He has since filed Criminal Appeal No. E311 of 2023 which is pending hearing and determination.
The applicant by way of a Notice of Motion dated 8 th November 2024 has moved this court for admission to Bail pending the hearing and determination of his appeal. He further seeks that the bail terms be similar to the bail terms granted by the Lower Court during the trial.
In the alternative the applicant has also prayed that this court be pleased to order the stay or suspension of the sentence in Milimani CMs court SO No. 10 of 2017 in which he was sentenced to serve 10 years imprisonment.
The Notice of motion is supported by an affidavit sworn by the applicant on 8 th November 2024 in which he states the following; “
THAT I was initially admitted to bail by the trial Court and I never jumped the same and I am ready and willing to abide by the bond terms that may be imposed by this Honourable Court.
THAT I have serious medical conditions that may jeopardize me if I continue to remain in prison as I am diabetic, hypersensitive and asthmatic. (annexed hereto and marked "AHS-1' is a copy of the medical report attesting as much)
THAT cognizant of the foregoing, I was even transferred from Industrial Area Prison to Kamiti Maximum Prison in an effort to get me better healthcare but that has not been of much help to me.
THAT I am also a senior citizen of 63 years; I am a person of advanced age living with serious medical conditions aforesaid and my continued stay in prison will only exacerbate my situation hence the humble prayer for the Honourable Court's very urgent intervention.
THAT additionally, I am a family man and my family is unable to afford basic needs as a result of my incarceration.
THAT during trial, while out on bail, I always attended Court religiously and I am, therefore, not a flight risk nor will I abscond Court.
THAT the trial court's proceedings have not been availed despite having innumerably requested for them and in light of the obtaining delay, and taking into consideration my advanced age and medical condition, it is, therefore, fair and just that the Honourable Court be pleased to certify the matter as urgent and grant me bail pending appeal on reasonable grounds.
THAT I am, therefore, apprehensive that the appeal may take a long time before it is heard and determined, hence the need for the Honourable Court's intervention with uttermost urgency and grant the prayers sought in the Application filed herewith taking into consideration my dire need for medical attention with the help of my family.
THAT I have an arguable appeal with overwhelming chances of success and that my Petition of Appeal raises triable questions of law and fact and is replete with justiciable grounds that are arguable on appeal.
THAT I have a known permanent place of abode within Nairobi County, where my family resides and as such, he is not likely to abscond court.
THAT I am not a flight risk because I have a known permanent place of abode within Nairobi County.
THAT I shall not abscond court and shall submit to the jurisdiction of this Honourable as and when so required.
THAT I am ready and willing to abide by the bail terms that the Honourable Court shall issue.
THAT I undertake to attend all court proceedings whenever and wherever required.
THAT in consideration of my ill health and the grounds stated herein, it is in the interest of justice and fairness that the orders sought herein be granted.
THAT unless this Honourable Court urgently intervenes and grants the orders sought, I shall suffer irreparable loss and damage.
THAT unless this Honourable Court intervenes with uttermost alacrity and certifies this Application Urgent, there is real danger that my family will continue to bear the brunt of my incarceration whereas my health will continue to deteriorate.
THAT there is absolutely no perceivable or actual prejudice that shall be suffered by the Respondent and it is the interest of justice that the orders sought herein be granted pending determination of the Appeal herein.
The applicants Notice of motion primarily raises 3 issues namely:
Whether there are exceptional circumstances laid out by the applicant to warrant the grant of bail pending appeal
Whether there is a likelihood of undue delay of the hearing of the appeal which may prejudice the applicant.
Whether the applicants appeal has overwhelming chances of success.
The law on bail pending appeal is that the court in determining the application should be mindful of the fact that it is dealing with a person who is a convict and has already lost the advantage of the presumption of innocence under Article 50 of the Constitution.
It is therefore necessary for the court to be satisfied that the appeal by the applicant has overwhelming chances of success and by failing to grant bail pending appeal the applicant would be prejudiced if the appeal eventually succeeds.
It is the duty of the applicant to demonstrate to the court beyond peradventure that in all likelihood his appeal would succeed thus by continuing to hold him in prison pending the hearing of the appeal the court would be subjecting him to serve a prison term that is not justifiable in law.
For an applicant to succeed on the ground of overwhelming chances of success he should persuade the court that based on the evidence available the conviction against him cannot be sustained or at least point out a point of law on the basis of which his appeal would be allowed.
The applicant in this matter made no attempt to highlight portions of evidence that in his view, if taken into account by the appellate court, the court would most likely be inclined to allow the appeal. The applicant did not also canvass any matter of law that would most likely lead the court to a conclusion that his conviction was not merited.
The application cannot therefore succeed on that ground.
Further, an applicant seeking bail pending appeal may also succeed if he demonstrates to the appellate court that there exist exceptional circumstances that would merit his release on bail pending appeal.
The exceptional circumstances may include ill health such as what the applicant has raised in the instant application. However, for the applicant to succeed on this ground he must be able to demonstrate that the nature of the health issue complained of, is such that it cannot be handled within the prison health facility thus necessitating his immediate release to seek medical care outside the prison. It would therefore require a medical report to support the ground of exceptional circumstances predicated upon ill health.
In the instant case the applicant has annexed a medical report dated 18 th of October 2024 in which the doctor says the applicant is diabetic, hypertensive and allegedly asthmatic. Further, the doctor stated that the applicant needs constant medical care and reviews. The report is dated 18 th of October 2024 and a look at the proceedings reveal that the applicant was convicted on the 2 nd of November 2023 meaning therefore he has all along been in prison custody.
It is therefore not clear to this court from a reading of the report whether the conditions noted by the doctor are not conditions that can be adequately handled within the prison environment. At least the doctor has not declared so in his report.
The applicant’s application cannot therefore succeed on the basis of a medical report which was apparently prepared almost a year after incarceration and that there is no evidence to show that the prison facility cannot provide the care needed.
In Mkirani v Republic (Criminal Appeal E010 of 2021) [2021] KEHC 300 (KLR ) the judge quoted the Supreme Court of India in the case of Krishnan v The People {SCZ 19 of 2011}, {2011} ZMSC 17 where the court enumerated the following conditions to be satisfied in an application for bail pending hearing of an appeal:
“i. Bail is granted at the discretion of the court.
ii. The court must be satisfied that there are exceptional circumstances that are disclosed in the application.
iii. The fact that the appellant due to delay in determining the appeal may, have served a substantial part of his sentence by the time his appeal is heard, is one such exceptional circumstance. Each case is considered on its merits, depending on what may be presented as exceptional circumstances.
iv. It is important to bear in mind that in an application for bail pending appeal, the Court is dealing with a convict, and sufficient reasons must therefore exist before such a convict can be released on bail pending appeal.
v. It is not for the court to delve into the merits of each ground. But it suffices that all the grounds are examined, and a conclusion is made that prima facie the prospects of success of the appeal are dim.
vi. The fact that the applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant to admit an applicant to bail pending appeal."
The court in line with the authority cited above is left to consider whether the appellant is likely to serve a substantial part of his sentence before the appeal can be heard and determined. The answer to that question is a emphatic no. The proceedings of the lower court are already typed and the appellant has already filed his record of appeal thus the matter is ripe for hearing. The court therefore finds no justifiable cause to admit the appellant to bail pending appeal on that ground.
Secondly, the applicant was sentenced to serve a term of 10 years imprisonment thus considering that the appeal has already been admitted nothing stops the appellant from setting down the appeal for hearing within the shortest time possible thus obviating the danger of serving a substantial part of the sentence.
In the end this court finds that the application has no merit and the same is hereby dismissed with an order that parties to the appeal do take the hearing date for the appeal immediately.
It is so ordered.