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JudgmentJOSHUA KINYUA WANJIKU VS REPUBLIC3 min read

JOSHUA KINYUA WANJIKU VS REPUBLIC

High Court at Kajiado High Court · · Stella Mutuku

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL APPEAL NO. E054 OF 2023

JOSEPH KINYUAWANJIKU………………………………………………….APPELLANT

VERSUS

REPUBLIC…………………………………………………………………….RESPONDENT

RULING

  1. The Appellant (Applicant) was tried, convicted and sentenced to 20 years imprisonment for the offence of defilement contrary to section 8(1) and (2) of the Sexual Offences Act in a judgment delivered on 19th October 2023 by Hon. A. N. Makau, PM in Ngong Chief Magistrate’s Criminal Case No.2 of 2020.
  2. He is dissatisfied and preferred to lodge this appeal. Pending the hearing and determination of the appeal, the Applicant has approached this court seeking to be admitted to bail through Notice of Motion dated 27th October 2023.
  3. In the grounds supporting the application, the Applicant argues that he was wrongly convicted and that he may have served the sentence by the time the appeal is concluded. He argues that the appeal has high chances of success.
  4. The application was canvassed through written submissions. The Applicant’s submissions are dated 22nd March 2024. He has relied on section 357(1) of the Criminal Procedure Code and Jivraj Shah v Republic [1986] eKLR and submitted that he has filed his appeal which has high chances of success and that he has pleaded exceptional circumstances in that there are contradictions and inconsistencies in the evidence; that the offence was not proved beyond reasonable doubt and that the trial court disregarded his alibi.
  5. He relied on R. v. Kanji [1946] KLR and Arvind Patel v Uganda S.C. Cr. Appeal No. 1 of 2003 to demonstrate that he his appeal has exceptional circumstances in that there may be delay in concluding the appeal, good character of the applicant coupled with other factors like high chances of the appeal being successful and compliance with bond terms by the applicant. He submitted that he is a first offender, a man of good character and he complied with bond terms during the trial and that his memorandum of appeal poses substantial points of law.
  6. The application is opposed by the Respondent who has argued that the Applicant has not demonstrated that his appeal stands high chances of success; that it is premature to argued that the appeal has high chances of success before the appeal has been heard; that the Applicant has not demonstrated how he will have served the sentence before the appeal has been heard or reasons which will occasion the delay in hearing the appeal.
  7. The Respondent urged that the application be dismissed.
  8. I have considered this matter. I have noted that the Applicant has not attached proceedings or judgment from the lower court to enable this court determine the argument that his appeal stands high chances of success. He has not demonstrated, through attaching evidence, that he has been facing difficulties in obtaining proceedings from the lower court.
  9. The judgment appealed from was delivered on 19th October 2023, over nine (9) months ago. There is no evidence to show the efforts, if any, the Applicant has put in place to secure proceedings from the lower court.
  10. After analyzing the grounds in support of the Application and the arguments in the submissions as well as cited authorities, it is considered view that the Applicant has not demonstrated exceptional circumstances to persuade this court to rule in his favour. This is an ordinary application and no exceptional circumstances exist to warrant granting of the orders the applicant is seeking. Consequently, this application fails. It lacks merit and is therefore dismissed.
  11. The Applicant shall continue serving sentence as he awaits the hearing and determination of this appeal. It is so ordered.

Dated, signed and delivered this 17th day of January 2025.

    JOSHUA KINYUA WANJIKU VS REPUBLIC JOSHUA KINYUA WANJIKU VS REPUBLIC