R U L I N G ON BOND PENDING APPEAL
1. The application herein by Bonface Sammy Charo dated 5/12/2024 by way of Notice of Motion prays for an order to admit the applicant to bail/bond on the same terms as he was during trial, pending the hearing and determination of the appeal herein. In the alternative, the applicant prays that the court orders a stay and suspension of execution of sentence passed in Msambweni Magistrates Court Criminal Case No. E034 of 2023 pending the hearing and determination of the appeal herein. Finally, that and the appellant be released on bond terms similar to the ones at the trial court using similar security and surety.
2. The application is brought under the provisions of Article 49 of the Constitution of Kenya, section 357(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, and all other enabling provisions of the law.
3. The appellant/applicant Bonface Sammy Charo together with another were convicted and sentenced to serve 7 years imprisonment by the trial court on two counts under the Wildlife Conservation and Management Act (Cap. 376) Laws of Kenya. The first count was dealing with wildlife trophy of endangered species without a permit or other lawful exception, contrary to section 92(2) of the Wildlife Conservation and Management Act. The second count is being in possession of wildlife trophy of endangered species without a permit or other lawful exception, contrary to section 92(2) of the Wildlife Conservation and Management Act. The particulars of the two counts are the same, that on 8/2/2023 at around 2200 Hours at Mwangulu Lunga Lunga sub-County within Kwale County they were found dealing (in respect of the first count) and in possession of (in respect of the second count) with wildlife trophies namely 4 pieces of elephant tusks weighing 14.5Kgs concealed in a white nylon sack with a street value of KShs 1,450,000/= being trophies of a species that is endangered under the 6th schedule of the Act without a permit or other lawful exemption under the said Act.
4. The appellant was dissatisfied with his conviction and sentence. He consequently lodged an appeal to the High Court vide a memorandum of appeal dated 25/11/2024 citing the following grounds:
a. The learned trial magistrate erred in law by holding that the prosecution had proved a case beyond a reasonable doubt against the appellant.
b. The learned trial magistrate erred in law and in fact by not considering the defence of the appellant.
c. The learned trial magistrate erred in law and in fact by failing to appreciate the fact that the appellant was not aware of what was contained in the sack.
d. The learned trial magistrate erred in law and in fact by failing to recognize that the appellant was not properly identified.
e. The learned trial magistrate erred in law and in fact by not discovering that the charge sheet and the particulars of the offence were defective.
f. The learned trial magistrate erred in law and in fact by not recognizing that there was no independent witness who was called to support the case against the appellant.
g. The learned trial magistrate erred in law and in fact by not considering that the three or two accounts (sic) were proved beyond a reasonable doubt.
h. The learned trial magistrate erred in law and in fact by handing the appellant an excessive sentence without considering the time he had spent in prison.
i. The learned trial magistrate erred in law and in fact by not holding the appellant innocent.
5. The grounds in support of the application are as set out below and expounded in the supporting affidavit sworn on 5/12/2024 and supplementary affidavit sworn on 7/1/2025 by Gideon Ragira Angima, advocate for the appellant. They are that:
a. The appeal as filed has high chances of success.
b. The applicant is sickly and needs medication outside prison.
c. The applicant is not a flight risk as he has always attended the trial court and he will do so if he is granted bail pending appeal.
d. The appellant is willing to provide a suitable security.
e. The appellant has a right to be released on bail or bond pending the hearing and determination of the appeal.
f. The respondent will not suffer any prejudice if the orders sought are granted.
g. That it is in the interest of justice that the appellant be admitted to bail or bond pending the hearing and determination of the appeal.
6. In the supplementary affidavit learned counsel has annexed some documents from Kwale prison clinic and deposes that the appellant has been on attendance there and further that the prison food is not good and therefore he should be released on bond pending appeal to seek medical attention outside.
7. The application is opposed by the respondent through submissions filed by the learned prosecution counsel.
8. The application was disposed of by way of written submissions filed by learned counsels for the parties.
9. Learned counsel for the appellant submits that the applicant has demonstrated that he should be released from custody on bond pending his appeal. Learned counsel for the respondent submits that the applicant has not satisfied the criteria for grant of bond pending appeal which is at the discretion of the court. She further submits that illness is not an exceptional circumstance to warrant the orders sought. Further that prisons are equipped to handle all issues.
10. I have considered the grounds in support of the application, the supporting affidavit and submissions by learned counsels for the parties. The issue for determination is whether the application satisfies the conditions for grant of bond pending appeal.
11. Release of a person convicted of an offence on bond pending appeal is provided for under section 357 of the Criminal Procedure Code (CPC) provide 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:
12. The principles considered by the court in an application for bail/bond pending appeal are enunciated in the case cited by both counsels of Jivraj Shah v Republic [1986] eKLR as follows:-
a. The existence of exceptional or unusual circumstances upon which a court of appeal can fairly conclude that it is in the interest of justice to grant bail.
b. Whether the appeal has overwhelming chances of success.
c. Whether there is a likelihood of the appellant having served a substantial part of the sentence by the time the appeal is heard and determined.
13. In Dominic Karanja V Republic (1986) KLR 612, the Court of Appeal when discussing the same principles held that;
“The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.
The previous good character of the applicant and the hardships, if any facing his family were not exceptional or unusual factors. His health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners.
A solemn assertion by an applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal…”
14. In an appeal, the court will usually consider whether there was sufficient evidence to support the decision of the trial court; whether the trial court correctly applied or interpreted the law and if not whether the error was material to the outcome and whether the trial court abused its discretion in arriving at its decision and if so whether the error influenced the outcome.
15. Learned counsel for the appellant has offered various reasons in the grounds and supporting affidavit and urged in the submissions that the appeal has a high likelihood of success. I have looked at the judgment of the trial court, the grounds set out in the petition of appeal, the depositions in the supporting affidavit and the submissions by learned counsels.
16. On the issue of overwhelming chances of success, the applicant contends that the trial court disregarded the defence of the appellant and the credibility of the prosecution witnesses.
17. My reading of the judgment shows that the learned trial magistrate not only set out the evidence tendered by the appellant and his co-accused together with their witnesses but also extensively analyzed it in view of what the prosecution witnesses had tendered. The credibility of the witnesses for the prosecution will properly be considered during arguments on appeal.
18. In the Dominic Karanja case (supra) it was held that the most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant his liberty. This is elaborated in the case of 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.”
19. The learned trial magistrate in her judgment dealt with each of the ingredients of the offences of dealing in wildlife trophies of endangered species and possession of the same. The appellant will have an opportunity to expound on why he feels the same were not proved in his appeal.
20. I need not go into the merits of the evidence tendered at the trial and judgment of the trial court at this stage as that is left for determination in the appeal. But a reading of the same leads me to find that the learned trial magistrate considered the facts as presented in evidence and the law. Whether or not after so doing she arrived at the correct decision is to be determined at the hearing of the appeal. It has been held that in an application for bond pending appeal, a court should be able to look at the applicant’s case at once and determine that it has overwhelming chances of success (see the case of Josephat Machoka Nyabwabu v Republic [2014] KEHC 6600 (KLR)). I find that the grounds offered herein may be arguable but fall below the threshold of overwhelming chances of success. As was held in the case of Josephat Machoka Nyabwabu case this is not a case that a court can take one look at and say that it has overwhelming chances of success.
21. The appellant has an opportunity though to present his case at the appeal when the court puts on the appellate lens which is sharper and more incisive than the lens of an application for bond pending appeal which is blurred by the fact that the court should not be seen to be considering the merits of the appeal at this level when all the material has not been presented.
22. In support of the ground of exceptional circumstances, the appellant has provided through the supplementary affidavit copies of medical documents from Kwale County hospital showing that he received medical attention there in one instance on 31/12/2024. However, there is no indication of the medical attention he underwent other than requests for laboratory examination. There is no indication of any follow-up medical attention to show how persistent the ailment was and that it could not be handled at that facility while he is in custody. I do not find this and the other reasons offered of not being a flight risk as he has dutifully attended court during trial and he is ready to abide by the terms of bond fixed herein to satisfy the criteria.
23. On whether there is a likelihood of the appellant having served a substantial part of the sentence by the time the appeal is heard and determined, learned counsel submits that the record of appeal is yet to be prepared and the hearing and determination of the appeal is likely to take some time. It is upon the appellant to prepare the record of appeal. There is no indication that he has asked for proceedings of the lower court and what he was told. But, in any case I do not think that the hearing and determination of the appeal is likely to take so long that by the time the decision is made, and in favour of the appellant if at all, he will have served a substantial part of his sentence of 7 years imprisonment.
24. In the result, this court finds that the application for bond pending appeal by the appellant is without merit and it is accordingly dismissed.
25. Orders accordingly.
Ruling dated, delivered, and signed in Open Court on Virtual Platform, Teams this 11th day of March 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant attending virtually from Kwale prison
N/A for the applicant
Vallerie for the respondent
Johnson - Court Assistant
1. The application herein by Bonface Sammy Charo dated 5/12/2024 by way of Notice of Motion prays for an order to admit the applicant to bail/bond on the same terms as he was during trial, pending the hearing and determination of the appeal herein. In the alternative, the applicant prays that the court orders a stay and suspension of execution of sentence passed in Msambweni Magistrates Court Criminal Case No. E034 of 2023 pending the hearing and determination of the appeal herein. Finally, that and the appellant be released on bond terms similar to the ones at the trial court using similar security and surety.
2. The application is brought under the provisions of Article 49 of the Constitution of Kenya, section 357(1) of the Criminal Procedure Code (Cap. 75) Laws of Kenya, and all other enabling provisions of the law.
3. The appellant/applicant Bonface Sammy Charo together with another were convicted and sentenced to serve 7 years imprisonment by the trial court on two counts under the Wildlife Conservation and Management Act (Cap. 376) Laws of Kenya. The first count was dealing with wildlife trophy of endangered species without a permit or other lawful exception, contrary to section 92(2) of the Wildlife Conservation and Management Act. The second count is being in possession of wildlife trophy of endangered species without a permit or other lawful exception, contrary to section 92(2) of the Wildlife Conservation and Management Act. The particulars of the two counts are the same, that on 8/2/2023 at around 2200 Hours at Mwangulu Lunga Lunga sub-County within Kwale County they were found dealing (in respect of the first count) and in possession of (in respect of the second count) with wildlife trophies namely 4 pieces of elephant tusks weighing 14.5Kgs concealed in a white nylon sack with a street value of KShs 1,450,000/= being trophies of a species that is endangered under the 6th schedule of the Act without a permit or other lawful exemption under the said Act.
4. The appellant was dissatisfied with his conviction and sentence. He consequently lodged an appeal to the High Court vide a memorandum of appeal dated 25/11/2024 citing the following grounds:
a. The learned trial magistrate erred in law by holding that the prosecution had proved a case beyond a reasonable doubt against the appellant.
b. The learned trial magistrate erred in law and in fact by not considering the defence of the appellant.
c. The learned trial magistrate erred in law and in fact by failing to appreciate the fact that the appellant was not aware of what was contained in the sack.
d. The learned trial magistrate erred in law and in fact by failing to recognize that the appellant was not properly identified.
e. The learned trial magistrate erred in law and in fact by not discovering that the charge sheet and the particulars of the offence were defective.
f. The learned trial magistrate erred in law and in fact by not recognizing that there was no independent witness who was called to support the case against the appellant.
g. The learned trial magistrate erred in law and in fact by not considering that the three or two accounts (sic) were proved beyond a reasonable doubt.
h. The learned trial magistrate erred in law and in fact by handing the appellant an excessive sentence without considering the time he had spent in prison.
i. The learned trial magistrate erred in law and in fact by not holding the appellant innocent.
5. The grounds in support of the application are as set out below and expounded in the supporting affidavit sworn on 5/12/2024 and supplementary affidavit sworn on 7/1/2025 by Gideon Ragira Angima, advocate for the appellant. They are that:
a. The appeal as filed has high chances of success.
b. The applicant is sickly and needs medication outside prison.
c. The applicant is not a flight risk as he has always attended the trial court and he will do so if he is granted bail pending appeal.
d. The appellant is willing to provide a suitable security.
e. The appellant has a right to be released on bail or bond pending the hearing and determination of the appeal.
f. The respondent will not suffer any prejudice if the orders sought are granted.
g. That it is in the interest of justice that the appellant be admitted to bail or bond pending the hearing and determination of the appeal.
6. In the supplementary affidavit learned counsel has annexed some documents from Kwale prison clinic and deposes that the appellant has been on attendance there and further that the prison food is not good and therefore he should be released on bond pending appeal to seek medical attention outside.
7. The application is opposed by the respondent through submissions filed by the learned prosecution counsel.
8. The application was disposed of by way of written submissions filed by learned counsels for the parties.
9. Learned counsel for the appellant submits that the applicant has demonstrated that he should be released from custody on bond pending his appeal. Learned counsel for the respondent submits that the applicant has not satisfied the criteria for grant of bond pending appeal which is at the discretion of the court. She further submits that illness is not an exceptional circumstance to warrant the orders sought. Further that prisons are equipped to handle all issues.
10. I have considered the grounds in support of the application, the supporting affidavit and submissions by learned counsels for the parties. The issue for determination is whether the application satisfies the conditions for grant of bond pending appeal.
11. Release of a person convicted of an offence on bond pending appeal is provided for under section 357 of the Criminal Procedure Code (CPC) provide 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:
12. The principles considered by the court in an application for bail/bond pending appeal are enunciated in the case cited by both counsels of Jivraj Shah v Republic [1986] eKLR as follows:-
a. The existence of exceptional or unusual circumstances upon which a court of appeal can fairly conclude that it is in the interest of justice to grant bail.
b. Whether the appeal has overwhelming chances of success.
c. Whether there is a likelihood of the appellant having served a substantial part of the sentence by the time the appeal is heard and determined.
13. In Dominic Karanja V Republic (1986) KLR 612, the Court of Appeal when discussing the same principles held that;
“The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.
The previous good character of the applicant and the hardships, if any facing his family were not exceptional or unusual factors. His health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners.
A solemn assertion by an applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal…”
14. In an appeal, the court will usually consider whether there was sufficient evidence to support the decision of the trial court; whether the trial court correctly applied or interpreted the law and if not whether the error was material to the outcome and whether the trial court abused its discretion in arriving at its decision and if so whether the error influenced the outcome.
15. Learned counsel for the appellant has offered various reasons in the grounds and supporting affidavit and urged in the submissions that the appeal has a high likelihood of success. I have looked at the judgment of the trial court, the grounds set out in the petition of appeal, the depositions in the supporting affidavit and the submissions by learned counsels.
16. On the issue of overwhelming chances of success, the applicant contends that the trial court disregarded the defence of the appellant and the credibility of the prosecution witnesses.
17. My reading of the judgment shows that the learned trial magistrate not only set out the evidence tendered by the appellant and his co-accused together with their witnesses but also extensively analyzed it in view of what the prosecution witnesses had tendered. The credibility of the witnesses for the prosecution will properly be considered during arguments on appeal.
18. In the Dominic Karanja case (supra) it was held that the most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant his liberty. This is elaborated in the case of 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.”
19. The learned trial magistrate in her judgment dealt with each of the ingredients of the offences of dealing in wildlife trophies of endangered species and possession of the same. The appellant will have an opportunity to expound on why he feels the same were not proved in his appeal.
20. I need not go into the merits of the evidence tendered at the trial and judgment of the trial court at this stage as that is left for determination in the appeal. But a reading of the same leads me to find that the learned trial magistrate considered the facts as presented in evidence and the law. Whether or not after so doing she arrived at the correct decision is to be determined at the hearing of the appeal. It has been held that in an application for bond pending appeal, a court should be able to look at the applicant’s case at once and determine that it has overwhelming chances of success (see the case of Josephat Machoka Nyabwabu v Republic [2014] KEHC 6600 (KLR)). I find that the grounds offered herein may be arguable but fall below the threshold of overwhelming chances of success. As was held in the case of Josephat Machoka Nyabwabu case this is not a case that a court can take one look at and say that it has overwhelming chances of success.
21. The appellant has an opportunity though to present his case at the appeal when the court puts on the appellate lens which is sharper and more incisive than the lens of an application for bond pending appeal which is blurred by the fact that the court should not be seen to be considering the merits of the appeal at this level when all the material has not been presented.
22. In support of the ground of exceptional circumstances, the appellant has provided through the supplementary affidavit copies of medical documents from Kwale County hospital showing that he received medical attention there in one instance on 31/12/2024. However, there is no indication of the medical attention he underwent other than requests for laboratory examination. There is no indication of any follow-up medical attention to show how persistent the ailment was and that it could not be handled at that facility while he is in custody. I do not find this and the other reasons offered of not being a flight risk as he has dutifully attended court during trial and he is ready to abide by the terms of bond fixed herein to satisfy the criteria.
23. On whether there is a likelihood of the appellant having served a substantial part of the sentence by the time the appeal is heard and determined, learned counsel submits that the record of appeal is yet to be prepared and the hearing and determination of the appeal is likely to take some time. It is upon the appellant to prepare the record of appeal. There is no indication that he has asked for proceedings of the lower court and what he was told. But, in any case I do not think that the hearing and determination of the appeal is likely to take so long that by the time the decision is made, and in favour of the appellant if at all, he will have served a substantial part of his sentence of 7 years imprisonment.
24. In the result, this court finds that the application for bond pending appeal by the appellant is without merit and it is accordingly dismissed.
25. Orders accordingly.
Ruling dated, delivered, and signed in Open Court on Virtual Platform, Teams this 11th day of March 2025
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant attending virtually from Kwale prison
N/A for the applicant
Vallerie for the respondent
Johnson - Court Assistant