HENDRICK NYONGESA PILISI AND SAMUEL WACHENJE VS The Republic HENDRICK NYONGESA PILISI AND SAMUEL WACHENJE VS The Republic

The applicants in this matter in this matter applied for bail pending appeal vide two notice of motion dated 11^th November 2024 and 22^nd November 2024.
At the hearing of the two notices Mr. T.K Ruto Advocate for Hendrick Nyongesa Pilisi urged this court to consider granting Bail pending appeal to the 1^st appellant.
On 21^st November 2024 Mr. Ruto appeared for the 1^st appellant Hendrick Pilisi while Mr. Jalson Makori prosecutor appeared for the state.
On that date Mr. Jalson Makori prosecution indicated to the court that he was not opposed to the appellants being released on bail pending appeal but did not offer any reasons at the time why he thought the two appellants should be admitted to bail.
When the court invited Mr. Ruto to argue his applications Mr. Ruto submitted that the appeal by the appellant has overwhelming chances of success.
According to him, the 1^st appellant was sentenced to serve 7 years without the option of a fine.
In his view the sentence ought to have been 3 years imprisonment thus on that ground alone the 1^st appellant ought to be granted bail pending appeal.
Counsel went further to submit that there were exceptional circumstances in this matter that would warrant the admission of the 1^st appellant bail pending appeal.
The 1^st appellant was alleged to be unwell thus the court ought to release him on bail to allow him seek specialized treatment.
Counsel for the 1^st appellant went further to submit that the 1^st appellant has been diligent in attending court since he was charged.
He also submitted that the 1^st appellant was not a flight risk.
Mr. Ruto advocate went further to submit that the 1^st appellant is the sole bread winner for his family thus deserving to be released on bail pending appeal.
The 1^st appellants counsel placed reliance on Article 49 of the Constitution and urged the court to consider that bail is a Constitutional right to the appellant and therefore he should not be denied that right.
The court was urged to consider that Under Section 357 of the Criminal Procedure Code Bail pending appeal is discretionary and by dint of that provision proceed to exercise discretion in favor of the 1^st applellant.
In the course of submissions by Mr. Ruto, Mr. Wandugi counsel for the 2^nd appellant joined the proceedings and sought to address the court on behalf of the 2^nd appellant.
The court however pointed out to Mr. Wandugu that the Notice of Motion by Mr. Ruto was in respect of the 1^st appellant and not for the two appellants.
Mr. wandugi requested the court to allow him file his application so that the court would be in a position to consider the two applications together.
It was out of counsel’s request that this court adjourned the matter to the 26^th November 2024 to allow Mr. Wandugi Advocate to put in his application for the 2^nd appellant Samuel Wachenje.
Mr. Wandugi filed a notice of motion dated 22/11/2024 and on 26/11/ 2024 when the matter came up for hearing we had Mr. Ruto, Mr. Chebii prosecution counsel and Mr. Kimani who appeared holding brief for Mr. Wandugi on line.
Upon inquiry from counsel whether they were ready to proceed with the hearing, Mr. Chebii prosecution promptly informed the court that he did not want to deal with the matter since Mr. Makori had already started handling. Mr. Chebii did not hesitate to seek exclusion from the matter citing unexplained internal difficulties in their office which he did not elaborate.
While at it Mr. Makori prosecution counsel logged in and the court excused Mr. Chebii from the proceedings.
At that point Mr. Ruto indicated to the court that he had completed his argument on bail and allowed Mr Kimani for the 2^nd appellant to proceed.
Mr. Kimani Advocate addressed the court and basically adopted the submissions made by Mr. Ruto.
Mr. Kimani indicated that the legal issues they intended to urge were similar to those canvassed by Mr. Ruto Advocate.
He however went on to add that the 2^nd appellant was the sole bread winner for his family and that the incarceration of the 2^nd appellant had exposed his family to financial difficulties.
Counsel pleaded to have the second appellant released on bail pending appeal and urged the court have the cash bail of Kshs. 3,000,000 deposited in the lower court accepted by this court as being sufficient surety for the appellant to be released.
Mr. Kimani further submitted that the 2^nd appellant had religiously attended court since the time he was charged and there was no possibility that he would abscond.
The second appellant was said to have a fixed abode and that he was ready to abide by any conditions that the court would impose.
Counsel for the 2^nd appellant took issue with the fact that his client was not given the option of payment of a fine thus according to him the sentence was excessive and harsh in the circumstances.
The second appellant was convicted of count 10 of the Charge Sheet being a charge of Breach of Trust by persons employed in the public service contrary to Section 127(1) as read with 127 (2) of the Penal Code and sentenced to serve a period of five years imprisonment. The offence attracts an one million shillings fine or an imprisonment for a period not exceeding 10 years or both.
Counsel went further to submit that the sentence was not proportionate and being a first offender, the 2^nd appellant should have been given a lighter sentence.
Mr. Jalson Makori prosecution counsel for the state indicated to the court that they were served by Mr. Wandugi with the application and that he was not opposed to the grant of Bail pending appeal to both appellants.
According to Mr. Makori, since the time the two appellants were charged none of them had failed to attend court so he saw no reason to oppose bail.
Mr. Makori urged the court to consider applying the Kshs. 3,000,000 deposited by each appellant in the lower court as bail for purposes of the appeal.
Mr. Makori urged the court to impose any other conditions it may please.
Counsel for the prosecution submitted that he did not wish to address the merits of the appeal at this stage but would await the hearing of the appeal. He expressly indicated to the court that he did not wish to deal with any of the issues raised in the memorandum of appeal.

ANALYSIS AND DETERMINATION.

An application for bail pending appeal is predicated upon two main considerations. The two conditions are that:-
The appeal has overwhelming chances of success.
There are special or exceptional circumstances that entitle the appellant to release on bail pending appeal
It should be noted that in dealing with bail pending appeal the court is to determine the right to bail of a convict who does not enjoy the presumption of innocence as envisaged under Articles 49 & 50 of the Constitution of Kenya. The two tests are well settled in our law and it is incumbent upon the appellant to demonstrate that his appeal stands an overwhelming chance of success as a preliminary consideration.
It is not for the court to venture into examining the record with a view to establish the existence of such grounds. An appellant who does not satisfy the two tests set out above must fail in his quest for bail pending appeal.
In Jivraj Shah v Republic [1986] KLR 605 the court laid down the principles as follows;“

(1)The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.
(2)If it appears prima face 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 and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists.
(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 weight and relevance of the points to be argued.”(emphasis mine)

In the above cited decision, the court identified the overwhelming chances of success of an appeal as the most important criteria that should inform a court’s decision to grant bail pending appeal. The appellant must bring to the fore those facts that would in his view render a conviction and sentence unsafe at the end of the hearing an appeal so as to persuade a judge considering an application for bail pending appeal to determine the application in his favor. That responsibility cannot be abdicated by the appellant and still hope to miraculously secure release on bail pending the hearing of an appeal.
In the instant case the only argument presented on a point of law by the two appellants is that the sentences imposed are harsh and excessive and therefore in their respectful view their appeals would eventually succeed on sentence.
Counsel for the two appellants did not present any arguments that would persuade the court that in all probability the conviction would be overturned at the end of the hearing of their respective appeals. The submissions tendered on behalf of the appellants did not identify any portions of the evidence that the appellants would be taking up on appeal to persuade the court to overturn the conviction. The argument by counsel that there is possibility of the sentence being interfered with on appeal cannot of itself alone be a justifiable reason for the grant of bail pending appeal.
I have had occasion to review the provisions of law under which the appellants were sentenced and the issue of sentence is in my view an arguable point but which the court will address substantively at the determination of the main appeal.
The omission by the appellants to point out facts and circumstances that would weigh in their favor at the hearing of the appeal dealt a fatal blow to the two applications for bail pending appeal.
The court was left to wonder what it is that the appellants are aggrieved about in respect of their conviction that they could not bring out during the hearing of the applications.
Having failed to discharge the burden placed upon them by the law, the two appellants left this court without any material to consider whether indeed their appeals have any realistic prospect of success let alone overwhelming chances of success.
The prosecution counsel who appeared for the respondent did not equally assist this court in identifying any evidential material on record that would probably lead to the court allowing the respective appeals.
Mr Makori, for the prosecution submitted that he was not opposed to the release of the two appellants on bail but sadly failed to give any reasons for his concessions or at least demonstrate to the court why he believed that the two appeals would eventually succeed.
The prosecution counsel stated that he would not comment on the merits of the appeal at this stage and would only do so at the hearing of the main appeal. That obviously left the court with nothing to act on in determining whether or not the two appeals have overwhelming chances of success. It is important to mention here that at the hearing of a bail pending appeal application the parties must address the court on all salient features of the appeal to demonstrate the overwhelming nature of the grounds of appeal.
Further, the prosecution counsel, just like counsel for the appellants focused heavily on what I consider none issues in applications of this nature. For instance, it matters not that an appellant dutifully complied with bail conditions given to him by the lower court during his trial. That only goes to demonstrate that he is a person capable of being trusted to attend court once released on bail but it must be remembered that the status of an accused person before conviction is very different from his status post-conviction. I must add that a convict has a higher incentive to take flight upon release on bail pending appeal and therefore the court must only grant bail solely on the basis of his conduct prior to his conviction but on the basis of the overwhelming chances of success of his appeal or the existence of special or exceptional circumstances to warrant release.
What then are exceptional circumstances?
It is the view of this court that the proof of an appellant’s deteriorating state of health accompanied by evidence that such an appellant is unlikely to receive proper treatment while serving term may be considered to be an exceptional circumstance. However, the appellant must demonstrate that prison facilities do not have the capacity to handle such an ailment within their medical facility. The 1^st appellant has not demonstrated that to the court. The ground of ill health therefore fails.
Secondly, the fact that the hearing of an appeal is likely to be delayed would also pass for a special or exceptional circumstance. In the present case that is unlikely to happen.
Thirdly, the possibility of an appellant serving a substantial part of his sentence prior to the determination of his appeal would also qualify to be considered an exceptional circumstance.
The question that therefore follows is, has any of the two appellants satisfied this court that there exists exceptional circumstances to warrant his release on bail pending appeal? The answer to this question is an affirmative no.
The first appellant through counsel indicated that he was ailing and that he would require medical attention thus the plea for his release on bail pending appeal. This court has considered the document annexed to the petition of appeal and marked “HNP5” which document was prepared an unnamed officer of Cinen Hospital which basically states that the 1^st appellant is “unstable medically’’.
It is the view of this court that the annexure is of no assistance to the court for it does not indicate whether the care proposed therein is unavailable within the prisons thus necessitating release of the 1^st appellant on bail.
It is worth noting that the author of the document is unidentifiable and therefore the contents of the document remain suspect. The author does not also suggest that the appellant requires special medical attention thus this court is not satisfied that the ground of illness in a respect of the first appellant has any weight to qualify for a special or exceptional circumstance. The ground therefore fails.
It has also been urged on behalf of both appellants that they are the sole bread winners of their families and that their incarceration has brought untold economic hardship to their respective families. Sad as it may be, that is the inconvenience that the family of any convict who was the sole bread winner before conviction has to go through purely on account of the limitation of the freedom of the convict. It is on this basis that an appellant who seeks release on bail pending appeal must demonstrate convincingly to the court that his appeal has overwhelming chances of success. As I have said elsewhere in the ruling the two appellants did not demonstrate the likelihood of success of their respective appeals.
In Osero Vs Republic ( Criminal Appeal E030 of 2023 ) [2024] KEHC 1760 (KLR) (22^ND February 2024) Justice S. Chirchir in considering a bail pending application where the applicant had been handed a five year held:-

“There is no reason as to why the appeal cannot be disposed off within the next one year at most. I am not therefore convinced by the applicant that he likely to serve sentence before the appeal is disposed of”. The appellants in this matter are serving 7 and 5 years respectively. It is therefore not likely that they will have served a substantial part of their sentence of their respective appeals are heard.

The arguments made in the respect of respective sentences by each of the appellants touched on the severity of the sentence thus even assuming their respective appeals on sentence would succeed that could only affect the length of time to be served. This court having perused the lower court file find that there is no possibility that this appeal will unnecessarily delayed and therefore I find there are no special or exceptional circumstances to grant bail pending appeal.
The respective applications are therefore dismissed and the appellants are advised to concentrate on the preparation of the hearing of the appeal.
The deputy registrar of this court to ensure that the proceedings of the lower court be immediately typed and supplied to the parties for purpose of preparation for the appeal.
The appeals to be mentioned on 23/1/2025
It is so ordered.

HENDRICK NYONGESA PILISI AND SAMUEL WACHENJE VS The Republic

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