1. Before me for determination is an Application dated 10th December 2024 seeking grant of bail/bond pending the hearing and determination of appeal filed by the Applicant herein. The Application was based on the following ground and an affidavit sworn by his learned counsel Mr Winston M. Magara;
a) That Judgment in Magistrate’s Court Sexual Offence number EI38 of 202l delivered on the 23rd day of August, 2024 by Hon. Sindani, P.M, Ogembo Law Court applicant has been in custody at Kisii Main Prison since then.
b) That the applicant was charged with the offence of defilement of a person with mental disability contrary to Section 7 of the Sexual Offences Act No.3, Laws of Kenya.
c) That the applicant was found guilty of the offence as charged and sentenced to Ten (10) Years imprisonment without an option of a fine.
d) That the appellant/ applicant being aggrieved by the said judgment to appealed to this court seeking an order of this court setting aside/ quashing the said decision vide High Court Criminal Appeal No. EI 13 of 2024.
e) That the said appeal is yet to be heard and determined and the respondent has been duly served with this instant application and a copy of the appeal attached thereto.
f) That since appeal has not been heard and determined it is only prudent, fair and just that the application be allowed.
g) That the appeal has a high and overwhelming chance of success in light of the fact that the court found complainant to be a person with mental without the evidence of a medical expert report specifically a psychiatrist and that the finding that complainant was a minor aged fifteen years was made without any evidence of a birth certificate or age assessment report.
h) That the applicant is aged Fifty Two (52) years old, married and blessed with five children and his occupation is masonry.
i) That the applicant is in poor health (High Blood Pressure und constant nose bleeding) which condition deteriorates each passing day if he does not get urgent and specialized medical care which is not available in the penitentiary.
j) That the applicant is not a flight risk and had been granted and admitted to bond in the trial court before he was convicted.
k) That the applicant always met the terms and conditions set by the trial court all through the hearing of the case and did not abscond or violate the said terms.
l) That the applicant is capable of availing more than one surety so that the bond terms can be met and approved, if the court so orders. .
m) That there is an available surety to ensure that the applicant attends court when and where he is required to so and the applicant further undertakes to attend court for hearing as well as remain within the local jurisdiction of the court at all times during the pendency of the appeal.
n) That this instant application has been filed without unreasonable delay and duly served upon the respondent for effective dispensation of justice.
o) That the applicant he has a good appeal with high chances of success and it was not his intention to delay by absconding could or failing to abide by the terms and conditions issued by the court.
p) That it is in the interest of justice that the said orders be granted as the same would not prejudice the respondent herein but further the interest of justice.
2. In response, the respondent filed grounds of opposition dated 17th March, 2025 which were that;
a) The application was an abuse of the court process
b) The application does not meet the threshold for grant of the bail pending appeal
c) The Applicant has not demonstrated exceptional circumstances for him to be granted bail or bond pending appeal
d) The fact that he was granted bond by the trial court and he complied is not an exceptional to warrant granting the applicant bail or bond
e) The appeal has no chances of success since the respondent proved its case beyond reasonable success.
f) The application is made in bad faith and the same is not in the interest of justice.
3. This court directed that the application be disposed of by way of written submissions. However it was only the Applicant who filed his written submissions.
THE APPLICANT’S SUBMISSIONS.
4. The learned counsel for the applicant submitted that the grounds for granting bond pending appeal were set out in the cases of Ademba -v- Republic and Jivrai Shah-v- Republic. He outlined the grounds as being;
1. That the appeal has overwhelming chances of Success.
2. That the previous good character of the applicant.
3. The existence of exceptional or unusual circumstances,
5. Regarding the ground as whether appeal has overwhelming chances of Success, the learned counsel argued that the appeal on record raises the fundamental legal issue of the law of evidence and faults the trial court for failing to confirm the mental soundness of the complainant and the manner in which such evidence was admitted. He contended that it was critical to note that the complainant was not of sound mind there as there no supporting scientific evidence to support this claim and that her viva voce evidence was admitted without assistance of an intermediary speaks otherwise taking into account the fact that the prosecution claimed that the complainant had a mental disability. The learned counsel contended that in absence of medical evidence of the complainant's mental disability the evidence advanced was irregular and unlawful and ought to be excluded from the evidence on record.
6. Regarding the previous character of the applicant, the learned counsel argued that apart from being convicted for the offence aforementioned, the applicant has never been charged and/ or convicted of any offence in Kenya and as such was a law abiding citizen. He also that upon being charged at Ogembo Law Court, the applicant was apparently released on bond and the trial was conducted as such to its conclusion and at no time did the applicant violate ant of the terms and conditions set by the court. The learned counsel thus contended it is evident that the applicant has always been of good character and there is no doubt that he will continue to be of good behavior if and when granted bond pending appeal.
7. Regarding existence of exceptional or unusual circumstances the learned counsel for the applicant submitted that applicant is an adult male of sound mind and disposition and a mason by profession. He argued that is the sole bread winner for a family of four who include young children and in his absence the children continue to suffer without food, clothing and are unable to attend school due to lack of school fees. The learned counsel argued too that Applicant's health is poor and the conditions in jail are deteriorating this condition with each passing day. He contended if granted bond pending appeal, the Applicant will be able to access the much needed medicine and professional round the clock medical care from specialists at his expense to ensure that he is fit to prosecute his appeal.
ISSUES OF DETERMINATION
8. Having considered the Application, the Petition of Appeal, the response thereto and the Applicants written submissions the sole of issue of determination is whether the applicant should be admitted to bond/bail pending Appeal.
ANALYSIS AND DETERMINATION
9. Bond or bail pending Appeal is provided for under Section 357 of the Criminal Procedure Code (CPC). It provides;
“357.Admission to bail or suspension of sentence pending appeal(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: Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.(2)If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.(3)The Chief Justice may make rules of court to regulate the procedure in cases under this section.”
10. It is clear that this court has powers to grant bond/bail pending Appeal. The threshold for granting bond pending appeal as set out in various court decisions is as follows:
a) Whether there exists exception or unusual circumstances which justify grant of bail in interests of justice. (See Jivraj Shah vs R (1986) KLR 605)
b) Such exceptional circumstances exist where the appeal has overwhelming chances of success or where a set of circumstances exist which disclose substantial merit in the appeal and that the sentence or a substantial part of it will have been served by the time the appeal is heard. (See Jivraj Shah supra; Mutua vs R (1988) KLR 497; and Somo vs R (1972) E.A 476.)
c) The previous good character of the applicant and the hardships facing his family, and his ill health, where there existed prison medical facilities for prisoners, are not exceptional or unusual circumstances. (See Dominic Karanja vs R (1986) KLR 612.)
d) A solemn assertion, even if supported by sureties, that the applicant will not abscond if released is not sufficient ground for releasing a convicted person on bail pending appeal. (See Dominic Karanja, supra).
11. I have considered the Petition of appeal and the grounds raised therein and grounds of opposition the submissions . It is clear that the petition of appeal same raises an arguable issues on whether prosecution proved their case beyond any reasonable doubt considering the fact that no evidence was led to the effect that the complainant was a person with mental disability and no intermediary was called to testify on her behalf .
12. On whether the Applicant demonstrated that there exists exceptional circumstances to warrant granting bond or bail pending hearing and determination of appeal., the Learned counsel averred on behalf of the applicant that applicant is a mason by profession. He averred further that the applicant is the sole bread winner for a family of four who include young children and in his absence the children continue to suffer without food, clothing and are unable to attend school due to lack of school fees. The learned counsel also averred that Applicant's health is poor and the conditions in jail are causing further deterioration of his health by the day. He contended if granted bond pending appeal, the Applicant will be able to access the much needed specialized at his own expense to ensure that he is fit to prosecute his appeal. He averred that apart from being convicted for the offence the applicant has never been charged and/ or convicted of any offence in Kenya and as such was a law abiding citizen. The learned counsel equally deposed that there are sureties available to secure his attendance to court. In case of the Dominic Karanja vs R (1986) KLR 612 , it was held that the previous good character of the applicant and the hardships facing his family, and his ill health, where there exists prison medical facilities for prisoners, are not exceptional or unusual circumstances. It was equally held in the said case that a solemn assertion, even if supported by sureties, that the applicant will not abscond if released is not sufficient ground for releasing a convicted person on bail pending appeal.. The allegation of ill health herein is not supported by any medical evidence. And this court takes Judicial notice that prisons in Kenya have medical facilities and complicated medical cases are usually referred to the County Referral hospitals for specialized treatment. Iam not convinced that the medical condition of the applicant if any cannot be managed effectively while he is in custody. In any event the record of appeal is ready and thus the appeal is ripe for hearing No exceptional circumstances have been shown to warrant grant of bond pending appeal .
13. From the forgoing therefore I agree with the state that the application has not met the threshold for grating Bond pending appeal . I find no merit in the application and the same is hereby dismissed.
14. Parties are hereby directed to take directions on the disposal of the appeal for expedicious disposal .
15. It is so ordered.
T.A ODERA
JUDGE
28.5.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 28TH DAY OF MAY 2025 IN THE PRESENCE OF :
THE APPLICANT
MR KOIMA FOR THE STATE
MR MAGARA FOR APPLICANT
CA – KINYA
a) That Judgment in Magistrate’s Court Sexual Offence number EI38 of 202l delivered on the 23rd day of August, 2024 by Hon. Sindani, P.M, Ogembo Law Court applicant has been in custody at Kisii Main Prison since then.
b) That the applicant was charged with the offence of defilement of a person with mental disability contrary to Section 7 of the Sexual Offences Act No.3, Laws of Kenya.
c) That the applicant was found guilty of the offence as charged and sentenced to Ten (10) Years imprisonment without an option of a fine.
d) That the appellant/ applicant being aggrieved by the said judgment to appealed to this court seeking an order of this court setting aside/ quashing the said decision vide High Court Criminal Appeal No. EI 13 of 2024.
e) That the said appeal is yet to be heard and determined and the respondent has been duly served with this instant application and a copy of the appeal attached thereto.
f) That since appeal has not been heard and determined it is only prudent, fair and just that the application be allowed.
g) That the appeal has a high and overwhelming chance of success in light of the fact that the court found complainant to be a person with mental without the evidence of a medical expert report specifically a psychiatrist and that the finding that complainant was a minor aged fifteen years was made without any evidence of a birth certificate or age assessment report.
h) That the applicant is aged Fifty Two (52) years old, married and blessed with five children and his occupation is masonry.
i) That the applicant is in poor health (High Blood Pressure und constant nose bleeding) which condition deteriorates each passing day if he does not get urgent and specialized medical care which is not available in the penitentiary.
j) That the applicant is not a flight risk and had been granted and admitted to bond in the trial court before he was convicted.
k) That the applicant always met the terms and conditions set by the trial court all through the hearing of the case and did not abscond or violate the said terms.
l) That the applicant is capable of availing more than one surety so that the bond terms can be met and approved, if the court so orders. .
m) That there is an available surety to ensure that the applicant attends court when and where he is required to so and the applicant further undertakes to attend court for hearing as well as remain within the local jurisdiction of the court at all times during the pendency of the appeal.
n) That this instant application has been filed without unreasonable delay and duly served upon the respondent for effective dispensation of justice.
o) That the applicant he has a good appeal with high chances of success and it was not his intention to delay by absconding could or failing to abide by the terms and conditions issued by the court.
p) That it is in the interest of justice that the said orders be granted as the same would not prejudice the respondent herein but further the interest of justice.
2. In response, the respondent filed grounds of opposition dated 17th March, 2025 which were that;
a) The application was an abuse of the court process
b) The application does not meet the threshold for grant of the bail pending appeal
c) The Applicant has not demonstrated exceptional circumstances for him to be granted bail or bond pending appeal
d) The fact that he was granted bond by the trial court and he complied is not an exceptional to warrant granting the applicant bail or bond
e) The appeal has no chances of success since the respondent proved its case beyond reasonable success.
f) The application is made in bad faith and the same is not in the interest of justice.
3. This court directed that the application be disposed of by way of written submissions. However it was only the Applicant who filed his written submissions.
THE APPLICANT’S SUBMISSIONS.
4. The learned counsel for the applicant submitted that the grounds for granting bond pending appeal were set out in the cases of Ademba -v- Republic and Jivrai Shah-v- Republic. He outlined the grounds as being;
1. That the appeal has overwhelming chances of Success.
2. That the previous good character of the applicant.
3. The existence of exceptional or unusual circumstances,
5. Regarding the ground as whether appeal has overwhelming chances of Success, the learned counsel argued that the appeal on record raises the fundamental legal issue of the law of evidence and faults the trial court for failing to confirm the mental soundness of the complainant and the manner in which such evidence was admitted. He contended that it was critical to note that the complainant was not of sound mind there as there no supporting scientific evidence to support this claim and that her viva voce evidence was admitted without assistance of an intermediary speaks otherwise taking into account the fact that the prosecution claimed that the complainant had a mental disability. The learned counsel contended that in absence of medical evidence of the complainant's mental disability the evidence advanced was irregular and unlawful and ought to be excluded from the evidence on record.
6. Regarding the previous character of the applicant, the learned counsel argued that apart from being convicted for the offence aforementioned, the applicant has never been charged and/ or convicted of any offence in Kenya and as such was a law abiding citizen. He also that upon being charged at Ogembo Law Court, the applicant was apparently released on bond and the trial was conducted as such to its conclusion and at no time did the applicant violate ant of the terms and conditions set by the court. The learned counsel thus contended it is evident that the applicant has always been of good character and there is no doubt that he will continue to be of good behavior if and when granted bond pending appeal.
7. Regarding existence of exceptional or unusual circumstances the learned counsel for the applicant submitted that applicant is an adult male of sound mind and disposition and a mason by profession. He argued that is the sole bread winner for a family of four who include young children and in his absence the children continue to suffer without food, clothing and are unable to attend school due to lack of school fees. The learned counsel argued too that Applicant's health is poor and the conditions in jail are deteriorating this condition with each passing day. He contended if granted bond pending appeal, the Applicant will be able to access the much needed medicine and professional round the clock medical care from specialists at his expense to ensure that he is fit to prosecute his appeal.
ISSUES OF DETERMINATION
8. Having considered the Application, the Petition of Appeal, the response thereto and the Applicants written submissions the sole of issue of determination is whether the applicant should be admitted to bond/bail pending Appeal.
ANALYSIS AND DETERMINATION
9. Bond or bail pending Appeal is provided for under Section 357 of the Criminal Procedure Code (CPC). It provides;
“357.Admission to bail or suspension of sentence pending appeal(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: Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.(2)If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.(3)The Chief Justice may make rules of court to regulate the procedure in cases under this section.”
10. It is clear that this court has powers to grant bond/bail pending Appeal. The threshold for granting bond pending appeal as set out in various court decisions is as follows:
a) Whether there exists exception or unusual circumstances which justify grant of bail in interests of justice. (See Jivraj Shah vs R (1986) KLR 605)
b) Such exceptional circumstances exist where the appeal has overwhelming chances of success or where a set of circumstances exist which disclose substantial merit in the appeal and that the sentence or a substantial part of it will have been served by the time the appeal is heard. (See Jivraj Shah supra; Mutua vs R (1988) KLR 497; and Somo vs R (1972) E.A 476.)
c) The previous good character of the applicant and the hardships facing his family, and his ill health, where there existed prison medical facilities for prisoners, are not exceptional or unusual circumstances. (See Dominic Karanja vs R (1986) KLR 612.)
d) A solemn assertion, even if supported by sureties, that the applicant will not abscond if released is not sufficient ground for releasing a convicted person on bail pending appeal. (See Dominic Karanja, supra).
11. I have considered the Petition of appeal and the grounds raised therein and grounds of opposition the submissions . It is clear that the petition of appeal same raises an arguable issues on whether prosecution proved their case beyond any reasonable doubt considering the fact that no evidence was led to the effect that the complainant was a person with mental disability and no intermediary was called to testify on her behalf .
12. On whether the Applicant demonstrated that there exists exceptional circumstances to warrant granting bond or bail pending hearing and determination of appeal., the Learned counsel averred on behalf of the applicant that applicant is a mason by profession. He averred further that the applicant is the sole bread winner for a family of four who include young children and in his absence the children continue to suffer without food, clothing and are unable to attend school due to lack of school fees. The learned counsel also averred that Applicant's health is poor and the conditions in jail are causing further deterioration of his health by the day. He contended if granted bond pending appeal, the Applicant will be able to access the much needed specialized at his own expense to ensure that he is fit to prosecute his appeal. He averred that apart from being convicted for the offence the applicant has never been charged and/ or convicted of any offence in Kenya and as such was a law abiding citizen. The learned counsel equally deposed that there are sureties available to secure his attendance to court. In case of the Dominic Karanja vs R (1986) KLR 612 , it was held that the previous good character of the applicant and the hardships facing his family, and his ill health, where there exists prison medical facilities for prisoners, are not exceptional or unusual circumstances. It was equally held in the said case that a solemn assertion, even if supported by sureties, that the applicant will not abscond if released is not sufficient ground for releasing a convicted person on bail pending appeal.. The allegation of ill health herein is not supported by any medical evidence. And this court takes Judicial notice that prisons in Kenya have medical facilities and complicated medical cases are usually referred to the County Referral hospitals for specialized treatment. Iam not convinced that the medical condition of the applicant if any cannot be managed effectively while he is in custody. In any event the record of appeal is ready and thus the appeal is ripe for hearing No exceptional circumstances have been shown to warrant grant of bond pending appeal .
13. From the forgoing therefore I agree with the state that the application has not met the threshold for grating Bond pending appeal . I find no merit in the application and the same is hereby dismissed.
14. Parties are hereby directed to take directions on the disposal of the appeal for expedicious disposal .
15. It is so ordered.
T.A ODERA
JUDGE
28.5.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 28TH DAY OF MAY 2025 IN THE PRESENCE OF :
THE APPLICANT
MR KOIMA FOR THE STATE
MR MAGARA FOR APPLICANT
CA – KINYA