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JudgmentPATRICIA MWONGELI MBITHI VS The Republic4 min read

PATRICIA MWONGELI MBITHI VS The Republic

High Court at Makueni High Court · · Matheka, Teresia Mumbua

RULING

  1. The applicant was charged in Makindu MCCCR No. 423 of 2017 together with one Dominic Makau Kimeu with being in possession of wildlife trophy contrary to section 95 of the Wildlife & Conservation Management Act 2013. It was alleged that on 13/5/2017 at Manyanga in Kibwezi sub-county, jointly with others not before court, without authority form Kenya Wildlife Service – she was found in possession of 4 pieces of elephant tusks to wit 13kgs valued at Kshs. 1,300,000/=.
  2. She pleaded not guilty.
  3. On 29/3/2023, after a full trial, she was found guilty of the offence - and convicted accordingly, while the 2nd accused was found not guilty and acquitted.
  4. The court sought a pre-sentence report.
  5. Upon considering the pre-sentence report, on 12/4/2023, the trial court fined her Ksh. 1 million in default to serve 5 years’ imprisonment.
  6. On 3/11/2023 she filed her appeal through the firm of Maosa & Co Advocates. This was accompanied by an application seeking bail pending, the hearing and determination of her appeal.
  7. The grounds for the application are set out on its face - and the affidavit in support sworn on even date.
  8. She states and depones that she in the appeal she is vigorously contesting her conviction and sentence – that the appeal will take long and she will have served her term, and hence render her appeal nugatory; that she is “in the bracket of mature and advanced age, sickly and may not be able to obtain treatment for the peculiar nature of the ailment she is suffering from”. She depones that she has annexed a copy of her medical report and the memorandum of appeal.
  9. Parties agreed to canvass the application by way of written submissions.
  10. It is submitted on behalf of the applicant that she relies on section 357 of the Criminal Procedure Code and the principles laid out in Jivraj Shah –vs- Republic (1986) e KLR: which sets down the minimum threshold and settled principles for granting bail.
  11. Section 357(1) of the Criminal Procedure Code Cap 75 Laws of Kenya provides. “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 securities, or, if that person is not released on bail shall at his request order that the execution of the sentence or order appeal against shall be suspended pending the hearing of his appeal”.
  12. And in Jivraj Shah –vs- Republic above the court stated;
        1. There must be in existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is 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.
  13. The court is urged to be guided by Gerald Macharia Githuka vs Republic Criminal Appeal No. 119 of 2004 where the Honourable Court stated; “The cornerstone of justice system is that no one will be punished without the benefit of due process including the right to exhaust the right of appeal. Incarceration before trial or pending hearing of an appeal cuts against this principle”
  14. The court is also referred to Daniel Dominic Karanja vs- Republic (1986) e KLR, where the court was of the view that the availability of sureties, ill health of the appellant, suffering of the appellant’s family would not be grounds for the granting of bail pending appeal. However, the anticipated delays in hearing an appeal, the length of the sentence, whether or not the applicant had pleaded guilty and/or admitted the offence and option of a non-custodial sentence were factors that an appellate court could take into account when considering an application for bail pending appeal.
  15. The argument here is that if bail pending appeal is not granted the applicant will serve most of her sentence.
  16. In opposing the application the DPP argues that the applicant has not placed before court evidence of the exceptional  circumstances upon which the court’s discretion would proceed; that the alleged illness and advanced age is not supported by any evidence as none was annexed to the affidavit in support of the application,  but more importantly – there is no risk of the appeal being rendered nugatory due to lapse of  time,  because the record of appeal has already been prepared and the appeal can be heard and determined in the shortest time.
  17. I have carefully considered the application; I have considered the submissions. The issue is whether the application is tenable.
  18. I have perused the record and it is the duty of the appellant to comply by the guiding principles as set out in Jivraj above. Ill health is not an exceptional circumstance. Lapse of time, could be but the applicant could have argued her appeal together with this application to save on time but chose not to. In any event appeals no longer take too long to be heard and determined.
  19. The applicant has not placed before court evidence of the alleged exceptional circumstances for instance.
  20. The appellant has already filed submissions on the appeal –There is no risk of the appellant serving the whole or most of the custodial sentence because appeals no longer take too long to be heard and finalized. Secondly the appellant was given the option of fine.
  21. In the upshot, I find the application for bail pending appeal unsupported and the same is declined.
  22. Parties can take directions on the appeal.
  23. The lower court file be availed within 30 days hereof.

Dated, signed and delivered on 23rd July 2024

Mumbua T Matheka

Judge

    PATRICIA MWONGELI MBITHI VS The Republic PATRICIA MWONGELI MBITHI VS The Republic