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JudgmentCALVINCE ONYANGO VS The Republic5 min read

CALVINCE ONYANGO VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


Preliminaries

  1. This Honourable Court is called upon to determine the Notice of Motion application dated 11TH October, 2024 seeking to be released on bail/bond pending the hearing and determination of the appeal.
  2. The Applicant was serving his sentence at Shimo la Tewa Maximum prison after being found guilty in CRIMINAL CASE NO. 81OF 2023. In his application he avers tha the was out on fairly lenient bond terms of ksh 50,000 during the trial and he did not abscond  and that the  he shall comply  by such orders as are issued by this Honourable Court.

Analysis and Determination

  1. Bail is a constitutional right of every citizen. Bond or bail pending Appeal is provided for under Section 357 of the Criminal Procedure Code (CPC). It provides

“357.Admission to bail or suspension of sentence pending appeal

(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: Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.

(2)If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.

(3)The Chief Justice may make rules of court to regulate the procedure in cases under this section.”

  1. Accordingly, Section 123A of the Criminal Procedure Code, Chapter 75 of the Laws of Kenya, stipulates that:-

(1) Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—

(a) the nature or seriousness of the offence;

(b) the character, antecedents, associations and community ties of the accused person;

(c) the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and;

(d) the strength of the evidence of his having committed the offence;

(2) A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—

a. has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;

b. should be kept in custody for his own protection.

  1. The consideration for the grant of bail pending appeal is founded in the principles set out in Mburu v Republic (Criminal Appeal E039 of 2023) [2024] KEHC 2757 (KLR) (14 March 2024) (Ruling) where the Court held that

7. For the Applicant, it is submitted the consideration for the grant of bail pending appeal is founded in the principles set out in Ademba v Republic 1983 eKLR where the Court of Appeal held that;

“ ……bail pending appeal may only be granted if there are exceptional or unusual circumstances.. the likelihood of success in the Appeal is a factor taken into consideration in granting bail pending appeal is a factor taken into consideration in granting bail pending appeal..”

8. Also cited was the decision in Dominic Karanja v Republic (1986) eKLR where it was held that;

“(a) The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.

(b) The previous good character of the applicant and the hardships if any facing his family were not an exceptional circumstance where there existed medical facilities for prisoners;

(c) 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.”

  1. Thus the considerations for the court to grant or deny bond pending appeal are;
    1. That the Appeal has overwhelming chances of success.
    2. The previous good character of the Applicant
    3. The existence of exceptional or unusual circumstances.
    4. The sentence or substantial part of it will have been served by the time the Appeal is heard
  2. The accused person has been charged and convicted on the offence of defilement and sentenced to  imprisonment. There is no doubt that the offence is serious but that should not be reason to deny him bond pending appeal. The overarching objective of bail is to ensure the accused attends his trial. Relevant matters to be considered by the court include: the nature of the charge, the likely sentence, previous criminal records, the views of the family of the victim, the possibility of interference with witnesses, the temptation to abscond and the safety of the accused.

Conclusion and Disposition.

  1. In my opinion, there are no exceptional or unusual circumstances that would necessitate the grant of the orders sought. Whereas the previous good record of the Applicant is a ground for consideration, that alone is not sufficient to warrant the grant the orders sought.
  2. It must be remembered that during the trial, the Applicant was presumed to be innocent. Right now he has been convicted by the Court of competent jurisdiction. Thus, the Application of Article 48 (1) (h) of the Constitution do not apply to the Applicant. At present, this court  is handling Appeals at a very exceptional rate. There are really no unreasonable delays in determining the same. 
  3. I am of the opinion that this is an Appeal that can be heard and determined in the shortest time possible. Consequently, I disallow the application with no orders as to costs. The Applicant to proceed to prepare the Record of Appeal.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……20th.…………DAY OF ……February…………………..…….., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

MR Ngiri, mMr Sirima and Ms Cherop         State Counsels;

Applicant 

    CALVINCE ONYANGO VS The Republic CALVINCE ONYANGO VS The Republic