1. Before me is the notice of motion dated 12/4/2025 brought under sections 123, 354, 356, 357 of the Criminal Procedure Code, Cap 75 Laws of Kenya, Articles 49(1) (h), 50 (2) (p) 159 of the Constitution of Kenya 2010 and all other enabling Provisions of the Law. It seeks inter alia that pending the hearing of the appeal herein, the appellant/applicant be admitted to bail and/or reasonable bond terms as the court shall deem fit and just to grant.
2. The grounds are on the face and the affidavit in support sworn by applicant Denuel Mokua Nyanyundo - alias Denuel Mukua Nyanyundo.
3. He depones inter alia;
1) That I was charged with 2 counts for the offense of stealing contrary to section 268 as read with section 275 of the Penal Code and computer fraud contrary to section 26(1) (c) of the computer misuse and cybercrimes Act No. 5 of 2018 before the Chief Magistrate’s Court at Makueni in Cr. No. 154 of 2025.- annexed herein is a copy of the charge sheet marked as “DMN1”
2) That subsequently, I was convicted on my own plea of guilty and sentenced on 3/4/2025 to serve three (3) years imprisonment for each count without an option of fine -. Annexed herein are copies of warrant of commitment for a sentence of imprisonment and proceedings marked as “DMN2a” and “DMN2b” respectively.
3) That upon my conviction and sentence, I immediately instructed my advocates herein now on record to peruse the court file and applied for certified copies of the proceedings and judgment herein – Annexed herein is a copy of letter for request marked as “DMN3”.
4) That I am a qualified clinician and my continued incarceration poses an imminent risk of not getting employment which would irreparably harm my livelihood - Annexed herein is a copy of certificate of registration marked as “DMN4”
5) That I am ready and willing to comply with any conditions that this honourable court may impose for my release on bail/bond pending appeal.
6) That further I wish to state that I am not a flight risk and I undertake to attend all court sessions as and when required to do so.
7) That further I wish to state that I have a young sibling who is completely depended on me as our parents are both deceased- Annexed herein is a copy of letter from our area Assistant chief marked as “DMN6”
4. The petition of appeal sets out the following grounds: -
a) Excessive, Harsh and Hard Sentences;
The sentence imposed on the appellant was manifestly hard, excessively harsh, punitive and failed to consider the appellant’s mitigation, personal circumstances and the principles of rehabilitation under Kenyan Law.
The trial court did not give sufficient weight to the fact that the appellant pleaded guilty, saving judicial time and showing remorse (Section 216 of the CPC)
b) Lack of option for fine
The sentences herein did not provide for an alternative fine and hence making the mandatory sentences unjustly severe.
The appellant submits that the court should exercise discretion under article 165(3) of the constitution to vary the sentence.
c) Precedents on Sentencing
Kenyan courts have held that mandatory minimum sentences may be reviewed for proportionality.
The appellant relies in the case of Isaya Otieno V Republic [2018] KEHC 1854 (KLR) where the court reduced a similar sentence.
d) Mitigating Factors
The trial court failed to consider that the appellant is a first - time offender with no prior criminal record.
The appellant pleaded guilty, demonstrating remorse and co-operation.
The appellant is a young man and an orphan.
The appellant being a clinician might lose his job.
The appellant has shown genuine remorse and is willing to reform.
5. The application is not opposed by the state – on the basis that there is possibility that appellant may serve a substantive part of the sentence before the appeal is heard.
6. I have considered the application.
7. The applicant was charged with; Stealing contrary to section 268 as read with section 275 of the penal code. The particulars are that on 30th March, 2025 in Wote Location, Makueni Subcounty within Makueni County Stole mobile phone make Redmi note 14 valued at Kshs. 26,500 the property of Nancy Nyambura Muraya. On count 2 he was charged with Computer Fraud contrary to section 20(1) (c) of the computer misuse and cybercrimes Act No.5 of 2018. The particulars are that on 30th March, 2025 within the Republic of Kenya, using unauthorised access means fraudulently transferred Kshs. 137,812 from money market fund client code 123802M registered under Nancy Nyambura Muraya to your Mpesa account 0707210344 registered under you thereby gaining the said amount fraudulently.
8. He pleaded guilty to both counts. He was convicted and sentenced accordingly
9. 348 of the Criminal Procedure Code states that
No appeal on plea of guilty, nor in petty cases No appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted on that plea by a subordinate court, except as to the extent or legality of the sentence.
10. Upon pleading guilty he can only challenge the sentence.
11. From the record and the view of the Sentencing Policy Guidelines, he has an arguable appeal.
12. However, as a convict he has lost the presumption of innocence - and the bond terms would have to reflect the same.
13. Application is allowed.
14. Application is admitted to bond of Ksh 250,000 with one surety of the same amount.
15. PACs to file a social inquiry Report on the appellant on or before 27th May 2025.
16. Mention on 27th May 2025 for directions on the Appeal
Dated, signed and delivered this via CTS (with consent of counsel) on 12th May 2025
Mumbua T Matheka
Judge
CA Chrispol
Mr. Onyancha for appellant