1. The application herein dated 13/11/2024 by way of Chamber Summons prays for an order that the applicant/appellant be granted favourable bond/bail terms pending the hearing and determination of his appeal. The application is brought under the provisions of Articles 47, 50 and 51 of the Constitution of Kenya, section 357 of the Criminal Procedure Code (Cap. 75) Laws of Kenya, and all other enabling provisions of the law.
2. The appellant/applicant Gideon Mukeku was convicted and sentenced to serve ten years imprisonment by the trial court on the principal charge of rape contrary to Section 3(1)(a)(b)(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya.
3. He was dissatisfied with his conviction and sentence. He consequently lodged an appeal to the High Court vide a petition of appeal dated 12/11/2024.
4. The application is premised on various grounds set out on the face of the application and expounded in the supporting affidavit sworn on 13/11/2024 by Ogunah A. Irene, advocate for the appellant. They are that:
a. the appeal has high chances of success.
b. the appellant is currently employed by the Teachers Service Commission attached at Vichenjeleni primary school as headteacher. He is apprehensive that his continued detention might render him jobless as the TSC shall terminate his employment as he is unable to carry out his administrative duties as per the TSC mandate.
c. he is the sole breadwinner for his family of seven members comprised of three children and three nephews, children of his deceased sister and brother.
d. he is aware of the uncertainties of appeal, hence it is safer to be released on bond and to avoid termination of his employment as he waits for the outcome of the appeal.
e. his place of abode and his work as a teacher are well known within his area of abode.
f. he was out on bond during trial and he always attended court whenever needed. He has a surety ready to stand for him in this case.
g. It is in the interest of justice that he be released on bond as no party is going to suffer prejudice.
5. The court directed that the application be disposed of on written submissions. The respondent did not file submissions.
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 considering 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, I find no argument of how the appeal has overwhelming chances of success. Learned counsel for the applicant submits that the three ingredients of the offence of rape were not proved beyond a reasonable doubt. There is no indication whatsoever on that very important consideration for bond pending appeal on which ingredient was not proved. The learned trial magistrate dealt with each of the ingredients in her judgment. The appellant will have an opportunity to expound on why the same were not proved in his appeal. 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 same leads me to find that the learned trial magistrate considered the facts as presented in evidence and the law in a case of rape. Whether or not after so doing she arrived at the correct decision is to be determined at the hearing of the appeal.
12. The main issue before the trial court was whether to believe the complainant that the appellant engaged in non-consensual sexual intercourse with her or to believe the appellant’s evidence that he never had any sexual intercourse with the complainant. She chose to believe the complainant. Whether or not she was right will be put to test during hearing of the appeal. Therefore, although the issue is arguable it does not meet the threshold of overwhelming chances of success. As was held in the case of Josephat Machoka Nyabwabu v Republic [2014] KEHC 6600 (KLR) this is not a case that a court can take one look at and say that it has overwhelming chances of success.
13. The appellant has an opportunity though to present his case at the appeal when the court puts on the appellate lens which is sharper and more incisive than the lens of an application for bond pending appeal which is blurred by the fact that the court should not be seen to be considering the merits of the appeal at this level when all the material upon which the appeal is premised has not been presented.
14. 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, the appellant states that he is a school headteacher and 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.
15. 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.
16. In the result, this court finds that the application for bond pending appeal by the appellant is without merit and it is accordingly dismissed.
17. I note that the trial court record has been made available with typed proceedings and what remains is preparation of the record of appeal. The same can be ready within 3 days. Thereafter, the appeal can be set down for hearing. I will therefore proceed to direct that the appeal is hereby admitted for hearing before this court on written submissions. Each party has 14 days after service of the record of appeal to file and serve submissions
18. The matter will be mentioned before the Deputy Registrar on 19/12/2024 to confirm preparation of the record of appeal and filing of submissions after which it will be placed before this court for directions on the date for judgment.
19. Orders accordingly.
20. Right of appeal 14 days explained.
Ruling dated, delivered, and signed in Open Court and Virtual Platform, Teams this 3rd day of December 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Ogunah (Ms) for the applicant.
Nandi (Ms) for the respondent.
Johnson - Court Assistant.
2. The appellant/applicant Gideon Mukeku was convicted and sentenced to serve ten years imprisonment by the trial court on the principal charge of rape contrary to Section 3(1)(a)(b)(3) of the Sexual Offences Act (Cap. 63A) Laws of Kenya.
3. He was dissatisfied with his conviction and sentence. He consequently lodged an appeal to the High Court vide a petition of appeal dated 12/11/2024.
4. The application is premised on various grounds set out on the face of the application and expounded in the supporting affidavit sworn on 13/11/2024 by Ogunah A. Irene, advocate for the appellant. They are that:
a. the appeal has high chances of success.
b. the appellant is currently employed by the Teachers Service Commission attached at Vichenjeleni primary school as headteacher. He is apprehensive that his continued detention might render him jobless as the TSC shall terminate his employment as he is unable to carry out his administrative duties as per the TSC mandate.
c. he is the sole breadwinner for his family of seven members comprised of three children and three nephews, children of his deceased sister and brother.
d. he is aware of the uncertainties of appeal, hence it is safer to be released on bond and to avoid termination of his employment as he waits for the outcome of the appeal.
e. his place of abode and his work as a teacher are well known within his area of abode.
f. he was out on bond during trial and he always attended court whenever needed. He has a surety ready to stand for him in this case.
g. It is in the interest of justice that he be released on bond as no party is going to suffer prejudice.
5. The court directed that the application be disposed of on written submissions. The respondent did not file submissions.
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 considering 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, I find no argument of how the appeal has overwhelming chances of success. Learned counsel for the applicant submits that the three ingredients of the offence of rape were not proved beyond a reasonable doubt. There is no indication whatsoever on that very important consideration for bond pending appeal on which ingredient was not proved. The learned trial magistrate dealt with each of the ingredients in her judgment. The appellant will have an opportunity to expound on why the same were not proved in his appeal. 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 same leads me to find that the learned trial magistrate considered the facts as presented in evidence and the law in a case of rape. Whether or not after so doing she arrived at the correct decision is to be determined at the hearing of the appeal.
12. The main issue before the trial court was whether to believe the complainant that the appellant engaged in non-consensual sexual intercourse with her or to believe the appellant’s evidence that he never had any sexual intercourse with the complainant. She chose to believe the complainant. Whether or not she was right will be put to test during hearing of the appeal. Therefore, although the issue is arguable it does not meet the threshold of overwhelming chances of success. As was held in the case of Josephat Machoka Nyabwabu v Republic [2014] KEHC 6600 (KLR) this is not a case that a court can take one look at and say that it has overwhelming chances of success.
13. The appellant has an opportunity though to present his case at the appeal when the court puts on the appellate lens which is sharper and more incisive than the lens of an application for bond pending appeal which is blurred by the fact that the court should not be seen to be considering the merits of the appeal at this level when all the material upon which the appeal is premised has not been presented.
14. 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, the appellant states that he is a school headteacher and 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.
15. 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.
16. In the result, this court finds that the application for bond pending appeal by the appellant is without merit and it is accordingly dismissed.
17. I note that the trial court record has been made available with typed proceedings and what remains is preparation of the record of appeal. The same can be ready within 3 days. Thereafter, the appeal can be set down for hearing. I will therefore proceed to direct that the appeal is hereby admitted for hearing before this court on written submissions. Each party has 14 days after service of the record of appeal to file and serve submissions
18. The matter will be mentioned before the Deputy Registrar on 19/12/2024 to confirm preparation of the record of appeal and filing of submissions after which it will be placed before this court for directions on the date for judgment.
19. Orders accordingly.
20. Right of appeal 14 days explained.
Ruling dated, delivered, and signed in Open Court and Virtual Platform, Teams this 3rd day of December 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Ogunah (Ms) for the applicant.
Nandi (Ms) for the respondent.
Johnson - Court Assistant.