HILLARY OCHIENG MAYI VS ODPP

Preliminaries

1. This Honourable Court is called upon to determine the oral application  application that was made by MR WAMEYO the APPELLANT’S advocate 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 stated that the appeal had been timelessly filed and it had overwhelming chances of success.      They had filed an earlier application but the court had directed the appeal to be expedited. The main ground for the review is his ill health and the delay in preparing the record.
3. The Applicant was on 7^th August 2024 convicted in CRIMINAL S.O. NUMBER 28 OF 2019 By the Chief Magistrate, Mombasa ad sentenced on the same day.
4. MR NGIRI for the Respondent indicated that he was not opposing the Application as he had become aware of the dire condition of the Applicant.  That he had not objected eo the earlier application.

Analysis and Determination

1. This Court is to determine grant of bail pending appeal under sections 356 & 357 of CPC. Section 123 and 123 A of CPC provide    the terms of granting bail or bond generally
2. Section 123 A 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. Sections 356 and 357 0f the criminal procedure code deal with bail pending appeal  as hereunder.

1. In 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;
2. 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,
3. The previous good character of the applicant,
4. 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.
5. Jivraj Shah – Versus -  Republic [1986] KLR 605 where the court considered the laid down the principles as follows;-
6. 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.
7. 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.
8. 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.”
9. The Applicant’s memorandum of appeal contains various grounds of appeal. Whether the appeal has high chances of success can only be proved at and upon the full hearing of the appeal herein.
10. The court has considered the issues to be considered before granting bail/bond pending appeal, the applicant/appellant deposed the following; the Appellant applied for proceedings and that the Appellant/ Applicant had a reasonable Appeal.
11. These factors against the charge/offence, the circumstances surrounding the proceedings and judgment pending appeal disclose special, exceptional or unusual circumstances that this court considers  and as noted the ODPP  did not oppose the grant of bond based on medical condition and the decongestion policy.

Conclusion and Disposition.

1. In light of the following, I proceed to grant bail pending appeal in the following terms;
   1. The Appellant/ Applicant shall be released on bond of Kshs 200,000/- with 1 surety of like amount or an alternative cash bail of KSH 100, 000 WITH 2 CONTACT PERSONS
   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 ……30th.…………DAY OF …………January……………..…….., 2025

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

Mr  NGIRI   State Counsel;

MR. WAMEYO ADVOCATE FOR THE Applicant