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JudgmentHASHIM KHAMISI VS The Republic10 min read

HASHIM KHAMISI VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


Preliminaries

  1. This Honourable Court is called upon to determine the Notice of Motion application dated 28th October, 2024 where the Appellant/ Applicant sought an Order to release the Appellant/Applicant and 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 averred that the appeal had been timelessly appealed. That the  said Appeal had overwhelming chances of success.
  3. The Applicant was on 16th October, 2024 convicted in CRIMINAL S.O. NUMBER E081 OF 2021 by the Chief Magistrate, Mombasa. He  immediately applied for proceedings and judgment which have been attached to the Application.
  4. The Respondent opposed the application through grounds of opposition dated 31st October, 2024 where they averred that:-
  5. The principles for consideration and determination whether to grant or deny bail pending Appeal were outlined in the case: Jivrai Shah – Versus - Republic (1986) eKLR as;
  6. The existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is just to grant bail.
  7. The previous good character of the Appellant.
  8. 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 argued.
  9. The sentence or a substantial part of it will have been served by the time the appeal is heard.
  10.  They  argued that In this instance, no such exceptional and or unusual circumstances have been shown by the Applicant to warrant the granting of bail pending the Appeal.
  11. That the attendance at the trial court and or good previous record of the appellant herein isn't sufficient grounds to grant the orders sought herein and due to the severe sentence imposed there is a predisposition for the applicant to abscond.
  12.  Further that The petition of Appeal dated 28th October, 2024 only raises points of facts and not weighty and or substantial points of law to be argued thus has no guarantee and or likelihood of success.
  13. They also pointed out that the  appellant was sentenced on the 16th October, 2024 and presently all appeals  are determined expeditiously and  Appellant has not or will not  serve a substantial sentence before the Appeal is heard and determined.
  14. That the  Appellant had been duly convicted by court of competent jurisdiction thus application of Article 48(1)(h) of the Constitution do not apply to the Applicant herein.
  15. There was a bail information report filed by Stephen Muthoka dated 18th December, 2024 who intimated that the applicant/appellant was convicted for the offence of defilement and sentenced to 30 years imprisonment on 23rd October, 2024 by Hon.G.A Ollimo. According to the Officer, the Appellant hailed from Kwa Shee village of Miritini Location Jomvu Sub County within Mombasa County. He was born and brought up within the said area where his parents and siblings resided and had a residential house. His parents Mr. Khamisi Mzee and Bijuma Kibwana Matano separated while the children were growing up. The where about of the father remains unknown while his mother Bijuma lived in the family house in Mikindani area with one of the daughters. The Appellant was a family man with 8 children from 5 different women he had been married to. His 1st wife Mishi Kombo Hassan worked with Kenya Ports Authority as an office messenger and together they were blessed with two children namely; Saida and Salama and who lives with their mother.
  16. The report shows  that his 2nd wife was Timah Mzee with whom they were blessed with 2 children Swabra and Swabir all living with the foster father where the wife was remarried in Mpeketoni. The 3rd wife Momo Ali is remarried in Kisauni and at the time of marriage they had been blessed with 1 child namely Bijuma Hashim while the 4th wife Siti Mohammed is remarried in Bombululu within Mombasa County. Together they were blessed with 2 children Hassan and Rukia all whom are young adults. At the time of the arrest he was living with his 5th wife Mwashumu Juma with whom they were married in 2023 and are blessed with 1 child namely Rashid Hashim aged 8 months old and currently in care of the wife in support of the siblings. All his five wives were lawfully married as per Muslim believes and were remarried as per Sharia laws and some of the children are still receiving support from the appellant for fees and upkeep.
  17. It was stated that the Appellant relied on his salary from Kenya Ports Authority where he was employed as a driver. He had no previous criminal conviction and his siblings and those interviewed describe him as astute religious believer  and  had no history of drugs.
  18. He  was aware of the seriousness of his charge and that it carried a lengthy prison term but chose to go through the trial to clear himself. He was still hopeful that he would get his freedom through the court system. In belief of the justice system he has taken unpaid leave from his work place until January 2025 in hope that he can secure bond pending appeal as he held his innocence as he pursue his appeal. The victim was untraceable.
  19. On the community ties, the Appellant was a well-known person in Kwa Shee where he was born and brought up. According to the village elder who knew him and his family, the appellant had cordial relations and kept regular contact with community. In KPA where he worked from for over 10 years, he had close social ties with fellow worker mates and has been associated to have been a very religious man. Those interviewed and remained anonymous mentioned him to have been doing charity work privately by offering support to the homeless and the less fortunate by buying them food stuffs.
  20. On the issue of bail/ bond sureties/ security, the officer stated that the surety in the lower court file was willing to continue with his responsibility as the inmate exhibited maturity during trial period attending all court proceedings. The family was willing to deposit any other surety and any condition as shall be ordered by the court. In conclusion, the Appellant was a family man with parental responsibility. His place of abode at the place of birth here in Mombasa County was confirmed. In the event he is admitted on bond pending appeal, he would continue residing in Mombasa where he runs a small scale business and where he has strong bonds which may tie him here as he pursues the appeal.

Analysis and Determination

  1. This Court is to determine grant of bail pending appeal under sections 356 & 357 of CPC. Section 123 of CPC provides terms of granting bail or bond generally as follows;

(1)When a person, other than a person accused of murder, treason, robbery with violence, attempted robbery with violence and any related offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail: Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.

(2)The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.

(3)The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.

  1. Section 123A 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. 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;
  3. 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,
  4. The previous good character of the applicant,
  5. 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.
  6. Jivraj Shah – Versus -  Republic [1986] KLR 605 where the court considered the laid down the principles as follows;-
  7. 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.
  8. 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.
  9. 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.”
  10. The Applicant filed an  appeal to this Court and the memorandum of appeal contains various grounds of appeal. Among them the Appellant alleges that there was no positive identification of the perpetrator of the offence and the Trial Court failed to recognize that. The Appellant also faulted the Trial Court for not observing the rules on part heard matters. Whether the appeal has high chances of success can only be proved at and upon the full hearing of the appeal herein. 
  11. The court has considered the issues to be considered before granting bail/bond pending appeal.
  12. These factors against the charge/offence and the evidence , the circumstances surrounding the proceedings and judgment pending  disclose special, exceptional or unusual circumstances that this court considers  to be substancial to warrant granting of bond.  i am satisfied that the 3 requirements set out above have been met and this is one such exceptional case.
  13. 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 application dated 28th October, 2024.

Conclusion and Disposition.

  1. In light of the following, I proceed to grant bail pending appeal in the following terms;
    1. The Applicant/appellant shall be released on bond of Kshs 500,000/- with 1 surety of like amount PLUS  an additional contact person who should avail his photograph. copy of identity card and telephone contacts.
    2. The Applicant shall not interfere or contact or engage with victim 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 …….…………DAY OF ………………………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

………………………………………….…Applicant

    HASHIM KHAMISI VS The Republic HASHIM KHAMISI VS The Republic