Application
1. The Notice of Motion application dated 14th May 2024 was brought under Sections 124 and 357 of the Criminal Procedure Code Cap 75 Laws of Kenya, Articles 47, 48, 50, and 159 of the Constitution and inherent powers and jurisdiction of the honourable court and all other enabling provisions of law seeking for orders that the Honourable Court be pleased to admit the Appellant to bail pending appeal in such terms as the court may deem fit, appropriate and expedient in the circumstances.
2. The application is premised on grounds on the face of the application and the Supporting Affidavit sworn by Dennis Manyura, the brother of the Appellant on 14th May 2024.
3. The application was served upon the Respondent but no response was filed.
Analysis and Determination
4. This court has considered the Notice of Motion Application dated 14th May 2024 and established that the issue for determination is whether the applicant has satisfied the court for grant of the order of bail pending appeal.
5. Article 50(2)(q) of the Constitution provides that: -
An accused person has the right …
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
6. Section 357 of the Criminal Procedure Code provides: -
(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.
7. In the case of Masrani v R [1060] EA 321, it was held that: -
“Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction.”
8. This court agrees with the position in the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR where it was held that: -
“The right to bail is provided under Article 49(1) 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 considering 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 Jiv Raji Shah vs. R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:
“(1) 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.
(2) If it appears prima face 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.”
9. The Court of Appeal in the case of Dominic Karanja v Republic (1986) KLR 612 stated 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 exceptional or unusual factors. Ill health per se would also not constitute 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;
(d) …………..”
10. This court has considered the constitutional and statutory right to appeal on conviction as well as the decisions above to the effect that it is the discretion of the court to grant bail pending appeal, which discretion should be exercised judiciously. In such an application, the applicant has the burden of establishing that the appeal has high chances of success or has a high likelihood of serving a substantial part of the sentence before hearing the appeal.
11. In this case, the Appellant was acquitted for the offences in Count I, II, III, and VI but convicted in Count IV and V for which he was fined Kshs. 200,000 in default to serve 12 months imprisonment and Kshs. 20,000 in default to serve 6 months imprisonment. Sentences to run consecutively.
12. The reason why the Appellant wants to be released is that his life is in danger while in prison as he is serving sentence with convicts whose cases he investigated and they may seek vengeance against him. Mr. Egunza also claimed that if the Appellant does not report to his boss at Kajiado Police Station fortnightly, he risks losing his job and that is his only source of income.
13. This court finds that the reasons given by the Appellant as grounds for bail pending appeal are not satisfactory as he has the option to pay the fine as he awaits the outcome of the appeal proceeds to argue the appeal immediately to conclusion as the records of appeal are ready in the file and should be served upon the Respondents for hearing. Concerning the safety of the Appellant, the officer in charge of the prison has a duty to ensure that if the Appellant feels insecure, his security should be enhanced.
14. The appeal is hereby set down for hearing on 17th June 2024.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 11th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for Respondent
Mr. Egunza Advocate for the Appellant
Appellant present in person
1. The Notice of Motion application dated 14th May 2024 was brought under Sections 124 and 357 of the Criminal Procedure Code Cap 75 Laws of Kenya, Articles 47, 48, 50, and 159 of the Constitution and inherent powers and jurisdiction of the honourable court and all other enabling provisions of law seeking for orders that the Honourable Court be pleased to admit the Appellant to bail pending appeal in such terms as the court may deem fit, appropriate and expedient in the circumstances.
2. The application is premised on grounds on the face of the application and the Supporting Affidavit sworn by Dennis Manyura, the brother of the Appellant on 14th May 2024.
3. The application was served upon the Respondent but no response was filed.
Analysis and Determination
4. This court has considered the Notice of Motion Application dated 14th May 2024 and established that the issue for determination is whether the applicant has satisfied the court for grant of the order of bail pending appeal.
5. Article 50(2)(q) of the Constitution provides that: -
An accused person has the right …
(q) if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
6. Section 357 of the Criminal Procedure Code provides: -
(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.
7. In the case of Masrani v R [1060] EA 321, it was held that: -
“Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction.”
8. This court agrees with the position in the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR where it was held that: -
“The right to bail is provided under Article 49(1) 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 considering 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 Jiv Raji Shah vs. R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:
“(1) 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.
(2) If it appears prima face 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.”
9. The Court of Appeal in the case of Dominic Karanja v Republic (1986) KLR 612 stated 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 exceptional or unusual factors. Ill health per se would also not constitute 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;
(d) …………..”
10. This court has considered the constitutional and statutory right to appeal on conviction as well as the decisions above to the effect that it is the discretion of the court to grant bail pending appeal, which discretion should be exercised judiciously. In such an application, the applicant has the burden of establishing that the appeal has high chances of success or has a high likelihood of serving a substantial part of the sentence before hearing the appeal.
11. In this case, the Appellant was acquitted for the offences in Count I, II, III, and VI but convicted in Count IV and V for which he was fined Kshs. 200,000 in default to serve 12 months imprisonment and Kshs. 20,000 in default to serve 6 months imprisonment. Sentences to run consecutively.
12. The reason why the Appellant wants to be released is that his life is in danger while in prison as he is serving sentence with convicts whose cases he investigated and they may seek vengeance against him. Mr. Egunza also claimed that if the Appellant does not report to his boss at Kajiado Police Station fortnightly, he risks losing his job and that is his only source of income.
13. This court finds that the reasons given by the Appellant as grounds for bail pending appeal are not satisfactory as he has the option to pay the fine as he awaits the outcome of the appeal proceeds to argue the appeal immediately to conclusion as the records of appeal are ready in the file and should be served upon the Respondents for hearing. Concerning the safety of the Appellant, the officer in charge of the prison has a duty to ensure that if the Appellant feels insecure, his security should be enhanced.
14. The appeal is hereby set down for hearing on 17th June 2024.
Dated, signed and delivered in Open Court/online through MS TEAMS,
This 11th day of June 2024
In the presence of: -
Etropia- Court Assistant
Mr. Ngiri for Respondent
Mr. Egunza Advocate for the Appellant
Appellant present in person