R U L I N G ON BOND PENDING APPEAL
1. The application herein dated 16/9/2024 by way of Notice of Motion prays for an order that this court be pleased 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 for the court orders a stay or suspension of execution of the sentence passed in Mombasa Magistrates Court Criminal Case No. E081 of 2022 Republic v Felix Ngari alias Mustapha pending the hearing and determination of the appeal herein. The application is brought under the provisions of Articles 49(1) and 165(3) 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.
2. The appellant/applicant Felix Ngari alias Mustapha was convicted and sentenced to serve 20 years imprisonment by the trial court on the principal charge of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. He was sentenced to serve 20 years imprisonment.
3. He was dissatisfied with his conviction and sentence. He consequently lodged an appeal to the High Court vide a memorandum of appeal dated 16/9/2024.
4. The application is premised on various grounds set out on the face of the application and expounded in the supporting affidavit sworn on 16/9/2024 by Mwakizozo Caren, advocate for the appellant. They are that:
a. based on the grounds of the appeal as set out in the memorandum of appeal, there is a substantial point of law to wit lack of evidence and reliance on irrelevant factors to convict the appellant and thus the appeal has overwhelming chances of success.
b. It is the applicant’s contention that if the offence did occur then it was not by him as there were two other males in the house at the time it allegedly happened.
c. There is a likelihood of the appellant serving the prison sentence or a substantial part of it by the time the appeal is concluded in which case, if he is successful, it will have caused him great prejudice.
d. He attended all court proceedings during trial while on bond and if released on bond pending appeal, he will abide by the bond terms as he is a law-abiding citizen.
5. The court directed that the application be disposed of on written submissions. The respondent did not file submissions in spite of the court and the applicant granting them several opportunities to do so.
6. Learned counsel for the appellant filed submissions urging the application. The submissions reiterate the grounds in support of the application as expounded in the supporting affidavit.
7. I have considered the grounds in support of the application, the supporting affidavit and submissions by learned counsel for the appellant. The issue for determination is whether the application satisfies the conditions for grant of bond pending appeal
8. 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:
9. The principles considered by the court in an application for bail/bond pending appeal are enunciated in the case 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.
10. In Dominic Karanja V Republic (1986) KLR 612, the Court of Appeal when discussing the principles which ought to guide the court in deciding an application for bond pending appeal 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…”
11. I have considered the judgment of the trial court and the grounds set out in the petition of appeal, the depositions in the supporting affidavit and the submissions by learned counsel.
12. 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.
13. On the issue of overwhelming chances of success, the applicant contends that the prosecution did not prove their case beyond a reasonable doubt and that the learned trial magistrate relied on recanted evidence of the complainant and ignored her testimony and relied on that of a third party. He also contends that there was no proof of penile vaginal penetration of the complainant’s genitalia, that the learned magistrate was wrong to find that the applicant was the only male person in the house at the time when evidence by the complainant and her grandmother, PW 2 showed that there were two other males namely Bakari aged 17 years and Hamisi aged 21 years who slept in the room; that the learned trial magistrate failed to interrogate the issue of the case being brought against the applicant as a way of settling scores between him and the complainant’s grandmother over monies the PW 2’s daughter was sending through the applicant.
14. 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 proceedings and the judgment of the trial court leads me to find that the issues raised by the applicant are not without merit. Whether or not the learned trial magistrate did a proper evaluation of the evidence and arrived at the correct decision is to be determined at the hearing of the appeal.
15. However, it is apparent from the proceedings that there are weighty issues of law to be determined during the appeal. The complainant was the only witness to the incident. Was she a truthful and honest witness? Was her evidence watertight and capable of forming a basis for the conviction of the applicant? The complainant stated in cross-examination that the applicant and her grandmother have disagreements over the money her mother who works in Saudi Arabia sends to the applicant for their upkeep. The applicant is their step-father. She also said that the following day after the alleged incident she left with her grandmother to her auntie’s house and that her grandmother and aunt forced her to say that the applicant had defiled her. She went further to say that her uncle called Boss called her mother and further that Boss said that the frame-up was done at Chari’s house. She finally said that her mother (sic) framed up the charges against the applicant because of her mum’s money.
16. Clearly the evidence of the complainant needed to be interrogated more especially since what she said in cross-examination appeared to contradict her evidence in chief and yet these contradictions do not seem to have been clarified in re-examination. The same had to be juxtaposed with the evidence in chief to determine whether her evidence in totality together with that of the other witnesses was reliable.
17. 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)). The Court of Appeal in the case of Philip Nzaka Watu v Republic Criminal Appeal No. 29 OF 2015 [2016] eKLR held that:-
“It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.”
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. On the existence of exceptional or unusual circumstances upon which this court can conclude that it is in the interest of justice to grant bail, his continued incarceration is likely to cost him his job. Surely, that cannot be an exceptional or unusual circumstance. I do not find the other reasons offered and submitted on by learned counsel being the appellant’s personal and family circumstances, 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.
20. 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, there is no argument offered to back that ground. 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 10 years imprisonment.
21. All the same, these two later grounds being minor to the main ground are now otiose in view of the court’s finding above on the issue of the success of the appeal.
22. In the result, this court finds that the application for bond pending appeal by the appellant has merit and it is accordingly allowed. The appellant may be released on bond pending appeal of KShs 300,000/= with one surety of a like sum or a cash bail of KShs 200,000/= with one contact person.
23. I am on transfer. The file to be placed before Hon. Lady Justice Wendy Micheni for directions on the hearing and disposal of the appeal. Mention before the Deputy Registrar on 6/2/2025 for directions on when the matter can be placed before the appellate court.
24. Orders accordingly.
Ruling dated, delivered, and signed on the Virtual Platform, Teams this 24th day of January 2025.
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Applicant present from Shimo La Tewa Prison
Mwakizozo for the applicant.
Ngiri for the respondent.
Etropia/Johnson - Court Assistant.