1.This ruling relates to the Appellant’s application for bond pending Appeal. It is dated 7th March 2024 . The application was presented by Learned Counsel MR F. M. MWAWASI .
2. The state did not oppose the application for bond but asked for a Bail Information Report which were prepared by Wycliff M. Wathome . The report is dated 22nd July 2024.
3.Analysis:
.The foundation of bail or bond in Kenya is the Constitution and the Criminal Procedure Code, Cap 75 of the Laws of Kenya (hereinafter referred to as ‘the CPC’).
4 .Article 49(1)(h) of the Constitution states as follows: -"An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or a trial, unless there are compelling reasons not to be released."
5 .Section 123(A) of the CPC sets out exceptions to the right to bail or bond. The provision was brought on board with a view to align theCPC with the Constitution. It provides that: -"(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 relevant circumstances and in particular –
a)the nature of 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 fulfilment of obligations under previous grants of bail; andd)the strength of the evidence of his having committed the office
.(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 as 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."
6. The rationale behind bail or bond in Kenya is premised on the constitutional imperative under Article 50(2)(a) of the Constitution that an accused is presumed innocent until the contrary is proved.
7.In bail or bond applications, therefore, the primary consideration must always be the ability of the accused to attend trial. The only exception remains where compelling reasons are demonstrated. Ibrahim, J (as he then was) in Republic v Danson Mgunya & Another [2010] eKLR described the right to bail as an “inalienable right” by holding that; "The result of the foregoing is that a murder suspect has a constitutional right to be released on bail. This is an inalienable right and can only be restricted by the court if there are compelling reasons for him not to be released."
8. Therefore, in granting bail or bond, the trial court is called upon to exercise its discretion and, if there are no compelling reasons to deny an accused bail or bond, the trial court should exercise its discretion in favour of the accused.
9. Both the Constitution and the CPC do not define what ‘compelling reasons’ are.
10.But what does the term ‘compelling reasons’ mean?
11.The term has been used in other jurisdictions to mean ‘exceptional circumstances’ or ‘unusual’ and ‘extraordinary circumstances’. Having gone through various statutes, scholarly writings and decisions within and outside our jurisdiction, it appears that the term ‘compelling reasons’ (or as the case may be) is not settled and may include a rubric of circumstances.
12.The 10th Edition, Black’s Law Dictionary defines ‘extraordinary’ as “beyond what is usual, customary, regular or common”. It also defines ‘a circumstance’ as “an accompanying or accessory fact, event or condition such as a piece of evidence that indicates the probability of an event”. The dictionary goes ahead to define “extraordinary circumstance” as “a highly unusual set of facts that are not commonly associated with a particular thing or event.”
13.In Kenya, Courts have, as well, dealt with the issue. In Republic v Joktan Mayende & 3 Others [2012] eKLR, Mohamed Abdurrahman Said & Another v Republic [2012] eKLR, Wilson Thirimba v DPP [2012] eKLR, among others, the Courts reverted to the meaning of the word ‘compelling’ as defined in the Concise Oxford Dictionary, 9th Edition which is defined as ‘rousing, strong, interest, attention, conviction or admiration’.
14.Admitting the challenge in the term ‘exceptional circumstances’, the Constitutional Court of South Africa in Liesching and Others v S (CCT304/16) [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (1) SACR 178 (CC) (29 August 2018) quoted with approval the definition in S v Petersen 2008 (2) SACR 355 (C) and had this to say: -"Meaning of “exceptional circumstances”(39)The phrase “exceptional circumstances” is not defined in the Superior Courts Act. Although guidance on the meaning of the term may be sought from case law, our courts have shown a reluctance to lay down a general rule. This is because the phrase is sufficiently flexible to be considered on a case-by-case basis, since circumstances that may be regarded as “ordinary” in one case may be treated as “exceptional” in another. For instance, in Petersen a Full Court of the High Court of South Africa, Western Cape Division, Cape Town (Western Cape High Court) observed in relation to an application for bail under section 60(11) (a) of the Criminal Procedure Act:"
15.On the meaning and interpretation of ‘exceptional circumstances’ in this context there have been wide-ranging opinions, from which it appears that it may be unwise to attempt a definition of this concept. Generally speaking ‘exceptional’ is indicative of something unusual, extraordinary, remarkable, peculiar or simply different. There are, of course, varying degrees of exceptionality, unusualness, extraordinariness, remarkableness, peculiarity or difference. This depends on their context and on the particular circumstances of the case under consideration. In the context of section 60(11) (a) the exceptionality of the circumstances must be such as to persuade a court that it would be in the interests of justice to order the release of the accused person. This may, of course, mean different things to different people, so that allowance should be made for certain flexibility in the judicial approach to the question. In essence the court will be exercising a value judgment in accordance with all the relevant facts and circumstances, and with reference to all applicable criteria."
16.Defining the term further, the South African Court in S v Bruintjies 2003 (2) SACR 575 (SCA) had the following to say: -"…. What is required is that the court consider all relevant factors and determine whether individually or cumulatively they warrant a finding that circumstances of an exceptional nature exist which justify his or her release. What is exceptional cannot be defined in isolation from the relevant fact.… If upon an overall assessment, the court is satisfied that circumstances sufficiently out of the ordinary to be deemed exceptional have been established by the appellant and which, consistent with the interests of justice, warrant his release, the appellant must be granted bail."
17.Still on the South Africa jurisprudence, in S v Rudolph 2010 (1) SACR 262 (SCA) at 266 g-h, the Court dealt with what exceptional circumstance are and reiterated that the Applicant in bail application must, on a balance of probability, demonstrate that “exceptional circumstances” in his or her case, indeed, do exist and that they “in the interests of justice permit his release”. This, according to the Court, involves the balancing” between the liberty interests of the accused and the interests of which”, society in denying the accused bail, will be resolved in favour of the denial of bail, unless “exceptional circumstance” are shown by the accused to exist”.
18.And, in Antonio Jacobie Snyders v The State (A455/2015) 2015 ZAGPPHC 618, the High Court in South Africa dismissed an appeal against denial of bail on the basis of the fact that the community was up in arms as it found it necessary to voice its opinion regarding the conduct of the Appellant. The Appellant’s concessions relating to his safety meant that it would not be wise to release the Appellant on bail. Indeed, the Appellant conceded that the community would not accept him back with open arms and that there existed some enmity between him and the community.
19.Given the amorphous nature of the term ‘compelling reasons’ or ‘exceptional circumstances’, a Court while exercising its discretion in dealing with a bail and bond application must ‘consider all relevant factors and determine whether individually or cumulatively they warrant a finding that circumstances of an exceptional nature exist which justify his or her release’ and must also balance “between the liberty interests of the accused and the interests of which”, society in denying the accused bail, will be resolved in favour of the denial of bail, unless “exceptional circumstance” are shown….”. In Kenya those ‘compelling reasons’ or ‘exceptional circumstances’ must be demonstrated by the prosecution.
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20. The consideration for the grant of bail pending appeal is founded in the principles set out in Ademba vs Republic 1983 eKLR where the Court of Appeal held that;“…… likelihood of success in the Appeal is a factor taken into consideration in granting bail pending appeal is a factor bail pending appeal may only be granted if there are exceptional or unusual circumstances.. the taken into consideration in granting bail pending appeal..”
21.Also In Dominic Karanja vs Republic (1986) eKLR it was 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.(b)The previous good character of the applicant and the hardships if any facing his family were not an exceptional circumstance 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.”
22.INthe case of Charles Owanga Oluoch vs The DPP [2015] eKLR it was held thus;“The right to bail is provided under Article 4991) of the Constitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial. After conviction that right is at the court’s discretion and upon consideration the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored. In the case of JivRaji Shah vs R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:“(1)The principle 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 in the interest of justice to grant bail.(2)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.(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.”
23.Having carefully considered this matter and in light of the in-depth analysis of the Constitution, the law and various decisions, this Court finds in light of Article 49(1)(h) of the Constitution and Section 123A(2)(b) of the CPC, there are compelling reasons in this case such that admitting the accused to bail or bond at this point in time will be prejudicial to the appeal
24.It is on the basis of the above reasons and in light of the unique circumstances of this case that this Court disallows the application. The application is dismissed. The court will nevertheless expedite the Appeal
25.Those are the orders of this Court.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 31st DAY OF JULY, 2024.
WENDY KAGENDO
JUDGE
Present
APPELLANT VIRTUALLY
Mr. MWAWASI for the Appellant/Applicant.
MS MAINA for RESPONDENT
BEBORA COURT ASSISTANT