1. The application herein dated 30/8/2024 by way of Notice of Motion prays for an order that the applicant/appellant be admitted to lenient bond/bail terms pending the hearing and determination of his appeal under the provisions of Articles 19, 20, 21, 24, 49 of the Constitution of Kenya section 357 of the Criminal Procedure Code (Cap. 75) Laws of Kenya, Rule 3 of the High Court (Practice and Procedure) Rules, the Bond and Bail Policy Guidelines and all other enabling provisions of the law.
2. The appellant Hillary Ochieng Mayi was convicted and sentenced to serve fifteen years imprisonment by the trial court on the charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. He was however acquitted of the principal charge of attempted defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act.
3. He was dissatisfied with his conviction and sentence. He consequently lodged an appeal to the High Court vide a petition of appeal dated 20/8/2024.
4. The application is premised on various grounds set out on the face of the application and expounded in the supporting affidavit sworn on 30/8/2024 by William O. Wameyo, advocate for the appellant. They are in summary that the judgment of the trial court was against the weight of the evidence tendered at the trial in the sense that the prosecution case was full of contradictions which were not resolved and they remained unsubstantiated claims without cogent proof as the complainant’s evidence was never subjected to the credibility test and lacked corroboration, the same were rebutted by the defence evidence which however the trial court did not critically consider. That the appeal has high chances of success. That the determination of the appeal is likely to take months or years and the appellant will have served a substantial part of his sentence due to a backlog in typing proceedings and considering that it was registered in August and to-date there is not much progress towards it being heard. That the appellant needs to be admitted to bail in order to continue offering services of serving humanity and also to adequately prepare for his appeal and that the appellant is not a flight risk as he has a known place of abode in Mombasa where he has continuously resided with his family and he is also an employee of the Coast General and Referral hospital. That he is ready and willing to be reporting to the Deputy Registrar of this court pending the hearing and determination of his appeal and he is ready to abide by all the conditions that may be set by the court. That he has religiously attended the trial court without fail from the time of plea to conviction since he was admitted to bond.
5. The Respondent through learned counsel Mr Ngiri was not opposed to the application stating that the appeal raises substantial points of law and the Respondent was considering whether or not to oppose the appeal.
6. Learned counsel for the appellant filed submissions urging the application. 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
7. 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:
8. The principles considered by the court in considering an application for bail/bond pending appeal are as enumerated by learned counsel for the appellant in his submissions. Some of them 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 of appeal is heard and determined.
9. 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…”
10. 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 has provided a histopathology report from the Coast General Teaching and Referral Hospital date-stamped 25/7/2024 showing that on 9/7/2024 he provided some specimen samples for laboratory examination and the clinical summary was “Gastritis and caecal polyp in a 36 year old male” with a conclusion of “Features of chronic gastritis with H.pylori and inflammatory colonic polyp.” This was before the appellant was convicted on 7/8/2024 and eventually sentenced to imprisonment. There is no indication of the medical attention he underwent and the results thereof if any. There is also no indication that he has sought and not obtained the requisite medical attention from the prison medical facilities where he is detained. I do not find the other reasons offered 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, that he needs to offer his services to the larger members of the public, to satisfy the criteria.
11. 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, it is deposed that the typing of proceedings is likely to take long due to a backlog of cases. Whereas, the fact of backlog in typing of proceedings is an issue acknowledged by the judiciary as a challenge due to shortage of typing personnel through various reports, the same can only be considered on a case by case basis. In this case, the appellant has not provided any indication that he has requested from the court administrator for typing of proceedings in his case and the answer given to him on when the same should be ready. I am aware that the Mombasa Law Courts Leadership and Management Team has acceded to the Mombasa Law Society request for parties’ advocates to be given handwritten proceedings to type in their chambers and return the same to court for proof-reading and eventual issuance and preparation of the record of appeal. The appellant’s fears can therefore be allayed if learned counsel takes this route to expedite the typing of proceedings, in case, the allegation that there is likely to be delay turns out to be true. 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 15 years imprisonment.
12. Learned counsel for the appellant has offered various reasons in the grounds and supporting affidavit and expounded in the submissions that the appeal has a likelihood of success. Having looked at the judgment of the trial court, the grounds set out in the petition of appeal, the depositions in the supporting affidavit and the submissions by learned counsel. The learned trial magistrate in her judgment dealt with each of the ingredients of the offence of committing an indecent act with a child as provided for under section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. 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. Whether or not after so doing she arrived at the correct decision is to be determined at the hearing of the appeal. I find that the grounds offered herein are arguable but fall below 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. Learned counsel for the Respondent submits that the appeal raises substantial points of law without any indication of what points these are. That does not help the court to determine what chance the appeal stands to succeed.
14. 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 has not been presented.
15. In the result, this court finds that the application for bond pending appeal by the appellant is without merit and it is accordingly dismissed.
16. Orders accordingly.
Ruling dated, delivered, and signed in Open Court and Virtual Platform, Teams this 2nd day of December 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant attending virtually from Shimo La Tewa prison
Ms Ochami for the applicant
Ngiri for the respondent
Etropia - Court Assistant
2. The appellant Hillary Ochieng Mayi was convicted and sentenced to serve fifteen years imprisonment by the trial court on the charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. He was however acquitted of the principal charge of attempted defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act.
3. He was dissatisfied with his conviction and sentence. He consequently lodged an appeal to the High Court vide a petition of appeal dated 20/8/2024.
4. The application is premised on various grounds set out on the face of the application and expounded in the supporting affidavit sworn on 30/8/2024 by William O. Wameyo, advocate for the appellant. They are in summary that the judgment of the trial court was against the weight of the evidence tendered at the trial in the sense that the prosecution case was full of contradictions which were not resolved and they remained unsubstantiated claims without cogent proof as the complainant’s evidence was never subjected to the credibility test and lacked corroboration, the same were rebutted by the defence evidence which however the trial court did not critically consider. That the appeal has high chances of success. That the determination of the appeal is likely to take months or years and the appellant will have served a substantial part of his sentence due to a backlog in typing proceedings and considering that it was registered in August and to-date there is not much progress towards it being heard. That the appellant needs to be admitted to bail in order to continue offering services of serving humanity and also to adequately prepare for his appeal and that the appellant is not a flight risk as he has a known place of abode in Mombasa where he has continuously resided with his family and he is also an employee of the Coast General and Referral hospital. That he is ready and willing to be reporting to the Deputy Registrar of this court pending the hearing and determination of his appeal and he is ready to abide by all the conditions that may be set by the court. That he has religiously attended the trial court without fail from the time of plea to conviction since he was admitted to bond.
5. The Respondent through learned counsel Mr Ngiri was not opposed to the application stating that the appeal raises substantial points of law and the Respondent was considering whether or not to oppose the appeal.
6. Learned counsel for the appellant filed submissions urging the application. 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
7. 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:
8. The principles considered by the court in considering an application for bail/bond pending appeal are as enumerated by learned counsel for the appellant in his submissions. Some of them 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 of appeal is heard and determined.
9. 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…”
10. 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 has provided a histopathology report from the Coast General Teaching and Referral Hospital date-stamped 25/7/2024 showing that on 9/7/2024 he provided some specimen samples for laboratory examination and the clinical summary was “Gastritis and caecal polyp in a 36 year old male” with a conclusion of “Features of chronic gastritis with H.pylori and inflammatory colonic polyp.” This was before the appellant was convicted on 7/8/2024 and eventually sentenced to imprisonment. There is no indication of the medical attention he underwent and the results thereof if any. There is also no indication that he has sought and not obtained the requisite medical attention from the prison medical facilities where he is detained. I do not find the other reasons offered 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, that he needs to offer his services to the larger members of the public, to satisfy the criteria.
11. 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, it is deposed that the typing of proceedings is likely to take long due to a backlog of cases. Whereas, the fact of backlog in typing of proceedings is an issue acknowledged by the judiciary as a challenge due to shortage of typing personnel through various reports, the same can only be considered on a case by case basis. In this case, the appellant has not provided any indication that he has requested from the court administrator for typing of proceedings in his case and the answer given to him on when the same should be ready. I am aware that the Mombasa Law Courts Leadership and Management Team has acceded to the Mombasa Law Society request for parties’ advocates to be given handwritten proceedings to type in their chambers and return the same to court for proof-reading and eventual issuance and preparation of the record of appeal. The appellant’s fears can therefore be allayed if learned counsel takes this route to expedite the typing of proceedings, in case, the allegation that there is likely to be delay turns out to be true. 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 15 years imprisonment.
12. Learned counsel for the appellant has offered various reasons in the grounds and supporting affidavit and expounded in the submissions that the appeal has a likelihood of success. Having looked at the judgment of the trial court, the grounds set out in the petition of appeal, the depositions in the supporting affidavit and the submissions by learned counsel. The learned trial magistrate in her judgment dealt with each of the ingredients of the offence of committing an indecent act with a child as provided for under section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. 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. Whether or not after so doing she arrived at the correct decision is to be determined at the hearing of the appeal. I find that the grounds offered herein are arguable but fall below 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. Learned counsel for the Respondent submits that the appeal raises substantial points of law without any indication of what points these are. That does not help the court to determine what chance the appeal stands to succeed.
14. 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 has not been presented.
15. In the result, this court finds that the application for bond pending appeal by the appellant is without merit and it is accordingly dismissed.
16. Orders accordingly.
Ruling dated, delivered, and signed in Open Court and Virtual Platform, Teams this 2nd day of December 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
The applicant attending virtually from Shimo La Tewa prison
Ms Ochami for the applicant
Ngiri for the respondent
Etropia - Court Assistant