REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HIGH COURT CRIMINAL APPEAL NO. E140 OF 2024
FREDRICK MUSOWO …………………………………. APPELLANT
VERSUS
REPUBLIC ………………………………………………… RESPONDENT
RULING
1. Fredrick Musowo through a petition dated 18th day of October, 2024 seeks to be released on bail with or without sureties pending his appeal. He avers that there is an overwhelming probability that his appeal will succeed.
2. In his supporting affidavit in support of the application he avers he has appealed against the conviction and sentence made by the Principal Magistrate at Kimilili law court. He relies on section 357 (1) of the Criminal Procedure Code.
3. The respondent did not oppose the applications.
4. The Court of Appeal held in the case of Jivraj Shah –vs- Republic (1986) KLR 605, inter alia that:
“1. The Principal consideration in an application for bail pending appeal is, the existence of exceptional or unusual circumstances upon which the court of Appeal can fairly conclude that it is in the interests of Justice to grant bail.
2. It appears prima facie from the totality of the circumstances that the appeal is likely to be successful on an account of some substantial point of law to be urged and the sentence or substantial part of it will have been serve by the time the appeal is heard, conditions for granting bail will exist.
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 the weight ad relevance of the appoints to be argued”.
5. In the case of Dominic Karanja v Republic (1986) KLR 612 the court of Appeal 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 exceptional or unusual factors. 111 health per 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 Upon considering the relevant material in this case, there was no overwhelming chance of the appeal being successful.
6. I have considered the application and the petition of appeal. The onus is on the applicant to demonstrate that there is good reason to grant him bail pending appeal. The applicant states that his appeal has a high chance of success on law and sentence.
7. The applicant was found guilty of and convicted and sentenced to serve three years imprisonment. I have considered the grounds of appeal and I am persuaded the said grounds disclose some reasonable grounds of appeal and taking all factors into account I find that the applicant has demonstrated that he is entitled to bail pending appeal. The applicant is now a convict serving a sentence, I hereby release the applicant on his bond of Kshs. 100,000/- with one surety of like amount to be approved by the Deputy Registrar.
Dated, Signed, and Delivered at Bungoma on this 28th Day of November 2024
R. E. OUGO
JUDGE
In the presence of:-
Fredrick Musowo /Applicant
Miss Komora h/b for Mr. Onkangi For the Applicant- present Miss Minishi -ODPP
Wilkister - C/A