CHARLES MURITHI MWENDA VS Office of the Director of Public Prosecution

1. The appellant/applicant was charged with the offence of obtaining money by false pretenses contrary to section 313 of the Penal Code. He was convicted and sentenced by the trial court. Being dissatisfied with the decision of the trial court, the appellant/ applicant herein has filed a petition of appeal alongside a chamber summons dated 06^th June 2024 seeking orders that:
   1. Spent;
   2. The applicant herein be granted bail pending hearing of the appeal herein; and
   3. The honourable court be pleased to make any other order it deems fit in the circumstances.
2. The application is accompanied by a supporting affidavit deposed by his advocate, setting out the grounds upon which the said application is premised. The applicant argued that given the long time that the appeal will take, it is prudent that he be released on reasonable bail/bond terms pending determination of the appeal. That the appeal lodged has high chances of success and that if the applicant is released on bail, the applicant will not abscond especially because he never absconded during the trial courts proceedings. The applicant’s advocate deposed that the applicant is the sole breadwinner for his young family. That the applicant suffers from diabetes, a condition requiring special diet and frequent medical attention, which needs cannot be met while he remains incarcerated and his condition is deteriorating.
3. The respondent opposed the application through grounds of opposition stating that the applicant has not presented any exceptional circumstances to warrant granting of the orders sought and that the appeal lacks merit. It also stated that the applicant has not cited any weakness in the prosecution’s case at trial thus the appeal does not have overwhelming chances of success.
4. The application was canvassed by way of written submissions.
5. The applicant relied on the cases of Arthur Muya Muriuki v. Republic (2015) eKLR, Arvind Patel v. Uganda S.C.Cr.App.1/2003 and Jivraj Shah v. Republic (1986) KLR 605 where the courts discussed circumstances under which bail pending appeal can be granted. In the submissions, the applicant revisited the evidence highlighting the loopholes therein, in a bid to prove that the appeal has high chances of success. He relied on the case of Dominic Karanja v. Republic (1986) eKLR and stated that so long as the appeal has high chances of success, the court should consider granting bail pending appeal. He was apprehensive that it is likely that the applicant would have served the sentence imposed before the appeal is determined. He urged the court to grant the orders prayed for.
6. The respondent submitted that at the point of appeal, the applicant does not enjoy presumption of innocence and that there are no grounds to release him on bail pending appeal. That the evidence adduced at the trial court makes a solid case such that the appeal herein does not have any chances of success. It urged the court to balance the rights of the victim’s family and those of the applicant to bail.
7. The issue for determination is whether the application has merit.
8. To begin with, it must be well understood that an appellate court can only grant bail pending appeal on discretionary basis according to Article 49(1)(h) of the Constitution of Kenya which provides that:-

“An accused person has the right …

(h) to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.”

1. On appeal, the appellant/applicant is no longer awaiting trial but rather, he has already been convicted and sentenced, and is awaiting hearing of the appeal, thus invoking the application of Section 357 of the Criminal Procedure Code which provides:

“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.”

1. This was the position in the case of Masrani v. R [1060] EA 321, where it was held thus:-

“Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction.”     

1. The principles guiding grant of bail pending appeal are set out in the case of Jivraj Shah v. Republic (1986) KLR 605 as follows:-

“1. The principal contribution in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest 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 argued and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists.

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.”

1. On establishment of exceptional circumstances, I am guided by the case of Dominic Karanja v. Republic (1986) KLR 612 where the court labored to explain what exceptional circumstances encompasses. The court stated:

“(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 exceptional or unusual factors. Ill health per se would also not constitute 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;

(d) …………..”

1. The applicant has argued that he is the sole breadwinner of his family which includes young school-going children. He has produced copies of school fees payment receipts as evidence. It was also his argument that he is diabetic, needing special diet and medication, which he cannot access within the prison facilities. That during the trial court proceedings, he was released on bail and he did not abscond at any given point. These are not necessarily to be considered as exceptional circumstances.
2. Given the circumstances of the case, it is my view that the applicant has failed to demonstrate to the court that the orders ought to be granted and the reasons given in support of the application are insufficient.
3. I therefore dismiss the application. I further direct that the appellant herein proceeds swiftly to have this appeal expedited urgently.
4. It is so ordered.

Delivered, dated and signed at Embu this 9^th day of October, 2024.