The applicant JOSPHAT KIOKO WAMBUA was charged in Kilungu MCCRC E282 of 2022 and tried alongside three other accused persons on two counts; attempted murder c/s 220 of the Penal Code, and Conspiracy to defeat the course of justice c/s 117 of the same Code. He was convicted on both counts and sentenced to serve 10 years and 2 years’ imprisonment respectively to run consecutively
Aggrieved by the conviction and sentence he filed this appeal together with an application dated 14th October 2024 seeking bail pending the hearing and determination the appeal.
The application is based on the grounds that the applicant was on bond during the trial in the subordinate court, and never absconded, that he is apprehensive he will serve the a substantial part of the sentence before the appeal is heard, that the appeal has high chances of success and will be rendered nugatory. That he is a family man, the sole bread winner with children in school, and if denied bond they will suffer. That he is not a flight risk, that he is law abiding, with great antecedents, of high standing in society.
The prosecutor simply stated that they had no objection.
The issue for determination is whether the application is merited.
The right to be released on bond is premised on the principle that an accused person is innocent until proven guilty. Once a person has been found guilty convicted and sentenced the enjoyment of that right becomes limited, and will be granted pursuant to the laid down principles.
The court has discretion under section 357(1) of the Criminal Procedure Code to grant a convicted person bond pending the hearing and determination of an appeal.
In Jivraj Shah vs Republic [1986] KLR 605 the court which laid down the principles as granting bond pending appeal stating as follows: -
a) 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.
b) 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 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.
c) 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)
The appellant relied on PHILIP OKOTH MUTSWENJE V REPUBLIC [2017] KEHC 6833 (KLR) and JOSEPH KIMWEA MAINA V REPUBLIC [2022] KEHC 1258 (KLR)
In JOSEPH KIMWEA MAINA V REPUBLIC [2022] KEHC 1258 (KLR) the court cited DOMINIC KARANJA VS REPUBLIC [1986] KLR 612 where the Court of Appeal considered to what amounts to exceptional or unusual circumstances and held that:-
(a)The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances;
(emphasis mine)
(b)The previous good character of the applicant and the hardships if any facing his family were not exceptional or unusual factors. Ill health per se would also not constitute exceptional circumstances where there existed medical facilities for prisoners;
(c)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;
The Court also cited PETER HINGA NGOTHO VS REPUBLIC [2015] EKLR it was held that the fact that the applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant a decision to admit an applicant to bail pending appeal.
It is evident that the issues raised in the application do not fall within what precedent have set as exceptional circumstances.
I have perused the Petition, and the grounds of appeal. On sentence the law provides imprisonment for life for the offence on attempted murder. The applicant was sentenced to 10 years’ imprisonment. The rest of the appeal is arguable The sentence.
The record of appeal is ready and there is no chance that the appellant will have served the substantial part of the sentence before the appeal is heard and determined.
In the circumstances I find that this matter is distinguishable from the persuasive authorities cited.
Guided by Court of appeal in DOMINIC KARANJA VS REPUBLIC [1986] KLR 612 and PETER HINGA NGOTHO VS REPUBLIC [2015] EKLR , I am of the view that the application is not merited and dismissed,
The parties can take directions on the hearing and determination of the substantive appeal.
Dated signed and delivered virtually this 7th March 2025.
Mumbua T Matheka
Judge
In the presence of:
Mr. Munyao for the appellant/applicant
Applicant: -Present
Mr. Kazungu for State
Court Assistant: Ms Nelima