ON BAIL PENDING APPEAL
1. Peter Mutua Mwololo was charged in Makindu MCRC 92/2020 with two counts under the Wildlife Conservation Management Act 2013 –
Count 1: Dealing with Wildlife trophy contrary to section 92(2) as read with section 105 of the same Act,
Count II: Being in possession of Wildlife trophy contrary to section 92(4) as read with section 105 of the Act.
The particulars were that on 16/10/2020 at Makindu Township, Makindu sub-county he was found transporting and in possession of two pieces of suspected elephant tusks using motorcycle registration number KMCN 493K Skygo with a street value of Kshs.700,000/= without authority from Kenya Wildlife Service Director General.
2. The accused pleaded not guilty and after a full trial was found guilty, convicted on the two counts, convicted, and sentenced on the 1st count to 7 years imprisonment, on the 2nd count to 5 years imprisonment sentences to run concurrently.
3. The accused was aggrieved and brought this appeal on grounds set out in the petition.
4. The appellant filed an application for bail pending appeal vide Notice of Motion dated 14/6/2024 brought under section 356 of the Criminal Procedure Code and Article 159 of the Constitution of Kenya 2010.
5. The grounds for the application are that:-
- He has already filed an appeal against the conviction and sentence.
- The appeal has overwhelming chances of success.
- That he suffers from severe ulcers and is on medication.
6. The application is supported by the affidavit of the Vincent M. Muia, Advocate for the appellant.
7. He depones that the appellant has a strong and arguable appeal with chances of success, that the appellant was convicted on inconsistent and unreliable evidence.
8. When the application came for hearing, Mr. Kazungu for the State submitted that they had filed Grounds of opposition He stated that the appellant was said to be unwell – and he had been served with some medical documents – and on that basis he was not opposed to the appeal.
9. I have carefully considered the application.
10. The appropriate section is section 357 of the Criminal Procedure Code as the accused had already filed an appeal.
(i)After the entering of an appeal by a person entitled to appeal, the High Court … may order that he be released on bail with or without sureties…”
11. The principles for bail pending appeal were set out in JIVRAJ Shah v Republic [1986] e KLR; that an application will be considered where there exists exceptional or unusual circumstances; that the appeal may be successful; that the sentence or substantial part of it will have been served by the time the appeal is heard and concluded.
12. Does this appeal have an overwhelming chance of success? In Somo v Republic [1972] EA 476, it was stated that the presumption is that the applicant was properly convicted. In this case other than the counsel’s affidavit that the appeal has high chances of success. However there is only the deposition that the prosecution only presented evidence of possession but none of dealing, yet the applicant was convicted on both.
13. I find that the deposition by counsel is insufficient to establish this point – until the appeal is argued and that point is established.
14. Are there exceptional circumstances to warrant the exercise of the court’s discretion to grant bail pending appeal? The applicant has not placed before the court any exceptional circumstances before court – there is no chance that he will have served his sentence before the appeal is heard
15. I find that the application is not merited. It is dismissed.
16. The applicant’s appeal be mentioned before the Deputy Registrar on 25th September hereof for purposes of obtaining proceedings and accelerating the appeal itself.
Dated, signed and delivered virtually this 27th August 2024
Mumbua T Matheka
Judge
Ms. Mwanatumu Court Assistant
Mr. Muia for the appellant
Appellant
Ms. Nyakibia for State