MARY GATHONI MUNGAI VS The Republic MARY GATHONI MUNGAI VS The Republic

The applicants have moved this court for the grant of bail pending appeal following their conviction and sentence in the Chief Magistrates court case no.1642 of 2020.
The two applicants who are man and wife and were charged with 7 counts of the offence of illegally refilling LPG cylinders of other brands without from the brand owners to fill contrary to Section 99(1) (m) of the Petroleum Act 2019 and Section 13(1) and 14(a)_ of the Petroleum (LPG) Regulations as read with Section 99(1)(ii) of the Petroleum Act 2019.
The particulars of the offence in count I are that on the 10^th day of April 2020 at CRESCENT ENERGY LIMITED L.P.G storage and filling and facility located within Kikuyu township within Kiambu county, jointly with others not before court were found to have filled 4pcs, 6kgs and 3pcs 13kgs LPG cylinders of K-Gas brand without authority. The cylinders were for the following brand owners:- K-Gas,E-Gas, Oilibya Gas , EDA-Gas, Afri-Gas,Supa-Gas and Total Gas.
In determining this application, the court has to determine whether the appeal by the applicants has overwhelming chances of success or whether there exists exceptional circumstances to warrant the granting of bail.
The principles for granting bond pending an appeal were set out in the case of Jivraj Shah v Republic [1986] KLR 605 which laid down the principles 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.”

The applicants through Mr Mungai advocate urged this court to consider the offences with which they were charged attract fines and that the learned honorable magistrate erred in law by failing impose the same.
The respondents by failing to file a response to the application have left the court to wonder what informed the magistrates decision to impose a mandatory prison term as opposed to a fine. The court has noted from the sentencing notes that the learned Honorable magistrate in addressing the seriousness of the offences took into account irrelevant considerations.
The applicants further maintain that there was a reason why parliament in its wisdom imposed a fine as the penalty with a period of imprisonment as an alternative.
The applicants further urged that the conviction entered against them cannot be sustained in the face of the evidence which they allege is marred with inconsistencies and contradictions.
It on the basis of the afore-going that the applicants plead to be released on bail pending appeal.
The applicants have further submitted that they undertake to abide by any conditions that the court may impose. While at it Mr. Mungai informed the court that they have processed the release of bail deposited in the lower court and pleaded with this court to consider imposing the same terms for they have been cooperating throughout the period of the trial in the lower court.
The respondents did not file any response to the bail application. Counsel for the state Mr Chebii conceded the application when it came up for hearing and rightly so in my view citing the cooperation of the applicants during the trial in the lower court as the main reason for him believing that they would not take flight once released on bail pending appeal. Pressed by this court on the issue of the overwhelming chances of success, Mr Chebii submitted that looking at the record there were triable issues in the appeal thus his concession.
Mr Chebii further submitted that the appeal has a hearing date already slated for the 23^rd January 2025 thus their release on bail would be in order considering the period that that they may serve between now and the determination of the appeal and given that if the appeal were to succeed even on sentence only the applicants would have been prejudiced.
Under Section 357 of the Criminal Procedure Code a person who has been convicted by the lower court may appeal to the High court against a decision of the lower court refusing to admit him or her to bail pending appeal. Similarly, an appellant could simply approach the High Court directly for Bail pending appeal. It is this path that the applicants have taken.
The Appellants were not given an option of a fine by the lower court even though the law allowed it. The appellants were on a Kshs 100,000 cash bail and they religiously attended court as when they were required to do so.
The conduct of the two during the period they were out on a bail shows that they understand their duty to court while out on bail.
Taking into account the fact that the court upon hearing the appeal may as well be persuaded to vary the sentence, that is in the view of this court an indicator of an appeal bearing overwhelming chances of success.
In addition the concession to the application by counsel for the state is a clear indicator that the state would not be averse to their release on bail pending appeal.
I have independently also perused the judgment rendered by the learned honorable magistrate and noted some disturbing pronouncements on the failure by the accused persons to testify in defense. I do not wish to say more lest I prejudice the hearing of the appeal.
The court is therefore inclined to allow the application for bail pending appeal and accordingly order that the two appellants be released from custody each on the same bail terms as were granted during the trial being cash bail of ksh 100,000 for each of the appellants.
It is so ordered.