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JudgmentCLINTONE ODINO ODHIAMBO VS The Republic7 min read

CLINTONE ODINO ODHIAMBO VS The Republic

High Court at Mombasa High Court · · Wendy Micheni

( ARISING FROM THE JUDGMENT IN THE CHIEF MAGISTRATE'S COURT AT MOMBASA SO NUMBER E091 OF 2020. [HON D. ODHIAMBO]

Preliminaries

  1. This Honourable Court is called upon to determine the Notice of Motion application dated 19th December, 2024 where the Appellant/ Applicant sought an Order to release the Appellant/Applicant and to admit him to bail on such terms as the Court may deem just and reasonable, pending the hearing and disposal of the Appellant’s appeal.
  2. The Applicant stated that the appeal had been timelessly filed and it had overwhelming chances of success.
  3. The Applicant was  convicted in CRIMINAL S.O. NUMBER E091 OF 2021 by the Chief Magistrate, Mombasa ad sentenced on the same day.

Analysis and Determination

  1. This Court is to determine grant of bail pending appeal under sections 356 & 357 of CPC. Section 123 and 123 A of CPC provide    the terms of granting bail or bond generally
  2. Section 123 A of CPC provides for exception to right to bail;-

(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 fulfillment 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. It is trite law that a person is presumed innocent until proven guilty in a criminal trial. The burden is on the prosecution to prove that he is not innocent during the trial. Every person is entitled to bail or bond pending trial as provided for by Article 49(1) (h) of the Constitution states that: -

“(1) An arrested 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. Once a trial court has made a determination and found an accused guilty of the offence, he is no longer considered innocent for his guilt has already been established. In this regard, if such a convict dissatisfied with the outcome, his recourse is to appeal against the decision. The conditions applicable for bail pending trial and bail pending appeal are different.  After trial and conviction, an accused can no longer be presumed as innocent and bail is no longer an automatic right. In this the applicant must demonstrate that his appeal has overwhelming chances of success to be entitled to bail pending appeal. Of course, there may be other considerations.
  2. Sections 356 and 357 0f the criminal procedure code deal with bail pending appeal  as hereunder.
  1. 356.

Bail and stay of execution pending the entering of an appeal

(1)

The High Court, or the subordinate court which has convicted or sentenced a person, may grant bail or may stay execution on a sentence or order pending the entering of an appeal, on such terms as to security for the payment of money or the performance or non-performance of any act or the suffering of any punishment ordered by or in the sentence or order as may seem reasonable to the High Court or the subordinate court.

(2)

If the person in whose favour bail or a stay of execution is granted under this section is ultimately liable to a sentence of imprisonment, the time during which the person has been released on bail, or during which the execution was stayed, shall be excluded in computing the term of his sentence, unless the High Court, or failing that court the subordinate court which convicted and sentenced the person, otherwise orders.

[Act No. 22 of 1959, s. 36.]

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.

[Act No. 22 of 1959, s. 37, Act No. 27 of 1961, Sch.]

358.

  1. In Peter Hinga Ngatho – Versus - Republic [2015] eKLR, Rebeca Nabutola – Versus - Republic [2012] eKLR and Dominic Karanja – Versus - Republic, the Court of Appeal set out guiding principles for grant of bail pending appeal as;
  2. The most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty. The minor relevant considerations would be whether there are exceptional or unusual circumstances,
  3. The previous good character of the applicant,
  4. Solemn assertion by an applicant that he will not abscond if he is released is not sufficient ground, even with support of sureties, for releasing a convicted person on bail pending appeal.
  5. Jivraj Shah – Versus -  Republic [1986] KLR 605 where the court considered the laid down the principles as follows;-
  6. that the principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which this Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.
  7. 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 a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exists.
  8. the main criteria is that there is no difference between overwhelming chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and the weight and relevance of the points to be argued.”
  9. The Applicant’s memorandum of appeal contain various grounds of appeal. Whether the appeal has high chances of success can only be proved at and upon the full hearing of the appeal herein.
  10. The court has considered the Bail information report dated 21st January 2025 prepared by Stephen Muthoka. It shows that he has a fixed place of abode and his family is committed to avail him during the appeal.
  11.   Further the Appellant applied for proceedings and that the same are not yet ready.
  12. These factors against the charge/offence, the circumstances surrounding the  offence, the delay in preparing the proceedings and judgment pending appeal disclose special, exceptional or unusual circumstances that this court considers even though the ODPP opposed the grant of bond I stand guided by the Bail information report and proceed to grant the prayers of the Applicant as per the notice of Motion  dated 19th December, 2024.

Conclusion and Disposition.

  1. In light of the following, I proceed to grant bail pending appeal in the following terms;
    1. The Appellant/ Applicant shall be released on bond of Kshs 500,000/- with 1 surety of like amount plus another contact person who should avail chief’s letter, copy of ID, PHOTOGRAPH AND TELEPHONE CONTACTS.
    2. The Applicant shall not interfere or contact or engage with victim  or her .family.
    3. The Applicant shall attend court on all dates required.
    4. The Applicant shall not leave the jurisdiction of this court.
    5. The appeal is admitted to be prosecuted within 90 days hereof

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……13th .…………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. Mauree, Court Assistant;

Mr  NGIRI   State Counsel;

MR. MAGOLO ADVOCATE FOR THE Applicant

    CLINTONE ODINO ODHIAMBO VS The Republic CLINTONE ODINO ODHIAMBO VS The Republic