The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act No 3 of 2006.
Particulars were that the Appellant on diverse dates between 1st and 20th September 2023 at Nyabohanse area in Kuria West Sub-County within Migori County intentionally caused his peinis to penetrate the vagina of L. G. a child aged 11 years.
The Appellant was also charged with the alternative count of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006.
The Trial Magistrate considered the evidence on record for the respective parties and found that the prosecution had proved the elements of the offence of defilement namely age, penetration and identification of the perpetrator as the Appellant who was the father of the Complainant. The Appellant was therefore convicted and sentenced to serve life imprisonment as provided under Section 8(2) of the Sexual Offences Act.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal dated 10th February, 2025 on the following grounds :-
a. THAT the Learned Trial Magistrate erred in law and fact by failing to comply with the provisions of Article 50 (2) (g) & (h) of the Constitution.
b. THAT the Learned Trial Magistrate erred in law and fact by not considering that the ingredients of the offence of defilement were not proved to the required standard.
c. That the Learned Trial Magistrate erred in law and fact by not observing that this was a framed up case with a purpose of scoring a goal.
d. That the Learned Trial Magistrate erred in law and fact by also not considering that the key witnesses did not testify in court to shed light on what they knew about the case.
e. That the Learned Trial Magistrate erred in law and fact by meting a harsh and excessive sentence in the circumstances and ignored defense and mitigation.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside. He prayed for retrial and leave of the court to amend or supplement more grounds after receiving the lower court proceedings.
The Appellant filed an application dated 26th February 2025 for bond pending appeal concurrently with the petition of appeal through the firm of Ombuya Owenga & Company Advocates.
The application is supported by the affidavit sworn by the Appellant on even date and the grounds on the face of the application.
The major reason for the application was that the Appellant suffers from a critical medical condition that requires urgent surgery as he has a detached metal in his collarbone which causes extreme pain and requires immediate removal. It was also averred that the Appellant was in severe distress, experiencing blood diarrhea, indicating a life threatening condition requiring specialized medical intervention which the prison facility cannot provide and thus putting the Appellant’s life at risk contrary to Article 43(1) (a) of the Constitution. It was also argued that the Appellant was not a flight risk and was ready to abide by the conditions imposed by the court.
The Respondent Counsel filed grounds of opposition to the application and submissions were subsequently filed in support dated 27th March 2025 and in opposition to the application dated 8th April 2025 respectively.
In Charles Owanga Aluoch vs. DPP (2015) eKLR, the Court said: -
i.“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.
ii.After conviction, that right is at the court’s discretion and upon considering the circumstances of application the court have over the years formulated several principles and guidelines upon which bail pending appeal is anchored.”
Section 357 of the Criminal Procedure Code provides for bail / bond pending appeal. It reads as follows: -iii.“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.iv.
Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further applications 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 section 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.”
While the above sections provide the statutory mechanism for the grant of Bail/Bond pending Appeal, the same is not automatic and the court has to exercise its discretion on whether or not to grant bail / bond pending appeal.
The criteria upon which the court may grant bail pending appeal were discussed in the Jivray Shah vs. Republic (1986) which are 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.vi.(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.vii.(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.”
What amounts to exceptional circumstances varies from case to case. In Dominic Karanja vs. Republic (1986) KLR 612, the Court of Appeal held that the Applicant’s good character or the hardships that the Applicant’s family were undergoing were not exceptional circumstances. It also held that ill health per se would not constitute exceptional circumstances where there existed medical facilities for prisoners.
Further in the case of Mutua vs. Republic (1988) KLR 497 the Court of Appeal said:
“It must be remembered that an Applicant for bail has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal. It is not wise to set the Applicant at liberty either from the point of view of his welfare or of the state unless there is a real reason why the court should do so”.
In the instant case, the Applicant has already been convicted and sentenced to life imprisonment for the offence of defilement. It is immaterial that he is or is not a flight risk. Being that he is now faced with imprisonment for life is an incentive for the him to take flight.
As stated in the Jivray case above, the principal consideration on whether or not to grant bail/bond pending appeal is the existence of exceptional or unusual circumstances. The exceptional circumstances that the Applicant relies upon is that he is suffering from a critical condition that cannot be adequately managed in prison. To support this ground is an x-ray film which date is not clear and outpatient record dated 19th April 2023 indicating that the Appellant had a depressed humeral head which he suffered following a motor cycle accident 4 years earlier and he never sought medical assistance. The offence herein was committed subsequent to the said accident in September 2023 but there is nothing to show he sought treatment again after the one he got as an outpatient at Kangundo Level 4 Hospital. There is nothing to show the kind of surgery the Appellant is due to undergo and which hospital has facilities that can carry out the sad procedure that cannot be obtained from a government hospital which ordinarily attend to inmates held in prison facilities at the expense of the state. In my view, this is not an exceptional or extraneous circumstance that cannot be managed and handled in the Prisons medical facilities. There is no other medical report or treatment notes upon his conviction and/or a demonstration of how his condition has manifested and greatly deteriorated or affected him while in custody upon conviction. This court would need a more detailed report to show that the applicant’s condition is so bad that it cannot be alleviated by medications and medical facilities within the prisons.
As to whether the Appellant’s appeal has high chances of success the submissions do not bring out the contradictions alleged to be in the Prosecution’s case or how the elements of the offence of defilement have not been proved. This should be left to be canvassed during the hearing of the main appeal once Records are prepared, filed and served and directions taken.
Being that the trial court file has already been availed and the proceedings have already been typed the onus is now on the Appellant to prepare and file his Record of Appeal timeously and thereafter fix the Appeal for hearing and determination expeditiously/ at the earliest convenience.
In the end, I find that the application for bail/ bond pending appeal is not merited. It is declined.
Dated, signed and delivered this 5th day of June, 2025
Particulars were that the Appellant on diverse dates between 1st and 20th September 2023 at Nyabohanse area in Kuria West Sub-County within Migori County intentionally caused his peinis to penetrate the vagina of L. G. a child aged 11 years.
The Appellant was also charged with the alternative count of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No 3 of 2006.
The Trial Magistrate considered the evidence on record for the respective parties and found that the prosecution had proved the elements of the offence of defilement namely age, penetration and identification of the perpetrator as the Appellant who was the father of the Complainant. The Appellant was therefore convicted and sentenced to serve life imprisonment as provided under Section 8(2) of the Sexual Offences Act.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal dated 10th February, 2025 on the following grounds :-
a. THAT the Learned Trial Magistrate erred in law and fact by failing to comply with the provisions of Article 50 (2) (g) & (h) of the Constitution.
b. THAT the Learned Trial Magistrate erred in law and fact by not considering that the ingredients of the offence of defilement were not proved to the required standard.
c. That the Learned Trial Magistrate erred in law and fact by not observing that this was a framed up case with a purpose of scoring a goal.
d. That the Learned Trial Magistrate erred in law and fact by also not considering that the key witnesses did not testify in court to shed light on what they knew about the case.
e. That the Learned Trial Magistrate erred in law and fact by meting a harsh and excessive sentence in the circumstances and ignored defense and mitigation.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside. He prayed for retrial and leave of the court to amend or supplement more grounds after receiving the lower court proceedings.
The Appellant filed an application dated 26th February 2025 for bond pending appeal concurrently with the petition of appeal through the firm of Ombuya Owenga & Company Advocates.
The application is supported by the affidavit sworn by the Appellant on even date and the grounds on the face of the application.
The major reason for the application was that the Appellant suffers from a critical medical condition that requires urgent surgery as he has a detached metal in his collarbone which causes extreme pain and requires immediate removal. It was also averred that the Appellant was in severe distress, experiencing blood diarrhea, indicating a life threatening condition requiring specialized medical intervention which the prison facility cannot provide and thus putting the Appellant’s life at risk contrary to Article 43(1) (a) of the Constitution. It was also argued that the Appellant was not a flight risk and was ready to abide by the conditions imposed by the court.
The Respondent Counsel filed grounds of opposition to the application and submissions were subsequently filed in support dated 27th March 2025 and in opposition to the application dated 8th April 2025 respectively.
In Charles Owanga Aluoch vs. DPP (2015) eKLR, the Court said: -
i.“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.
ii.After conviction, that right is at the court’s discretion and upon considering the circumstances of application the court have over the years formulated several principles and guidelines upon which bail pending appeal is anchored.”
Section 357 of the Criminal Procedure Code provides for bail / bond pending appeal. It reads as follows: -iii.“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.iv.
Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further applications 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 section 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.”
While the above sections provide the statutory mechanism for the grant of Bail/Bond pending Appeal, the same is not automatic and the court has to exercise its discretion on whether or not to grant bail / bond pending appeal.
The criteria upon which the court may grant bail pending appeal were discussed in the Jivray Shah vs. Republic (1986) which are 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.vi.(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.vii.(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.”
What amounts to exceptional circumstances varies from case to case. In Dominic Karanja vs. Republic (1986) KLR 612, the Court of Appeal held that the Applicant’s good character or the hardships that the Applicant’s family were undergoing were not exceptional circumstances. It also held that ill health per se would not constitute exceptional circumstances where there existed medical facilities for prisoners.
Further in the case of Mutua vs. Republic (1988) KLR 497 the Court of Appeal said:
“It must be remembered that an Applicant for bail has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal. It is not wise to set the Applicant at liberty either from the point of view of his welfare or of the state unless there is a real reason why the court should do so”.
In the instant case, the Applicant has already been convicted and sentenced to life imprisonment for the offence of defilement. It is immaterial that he is or is not a flight risk. Being that he is now faced with imprisonment for life is an incentive for the him to take flight.
As stated in the Jivray case above, the principal consideration on whether or not to grant bail/bond pending appeal is the existence of exceptional or unusual circumstances. The exceptional circumstances that the Applicant relies upon is that he is suffering from a critical condition that cannot be adequately managed in prison. To support this ground is an x-ray film which date is not clear and outpatient record dated 19th April 2023 indicating that the Appellant had a depressed humeral head which he suffered following a motor cycle accident 4 years earlier and he never sought medical assistance. The offence herein was committed subsequent to the said accident in September 2023 but there is nothing to show he sought treatment again after the one he got as an outpatient at Kangundo Level 4 Hospital. There is nothing to show the kind of surgery the Appellant is due to undergo and which hospital has facilities that can carry out the sad procedure that cannot be obtained from a government hospital which ordinarily attend to inmates held in prison facilities at the expense of the state. In my view, this is not an exceptional or extraneous circumstance that cannot be managed and handled in the Prisons medical facilities. There is no other medical report or treatment notes upon his conviction and/or a demonstration of how his condition has manifested and greatly deteriorated or affected him while in custody upon conviction. This court would need a more detailed report to show that the applicant’s condition is so bad that it cannot be alleviated by medications and medical facilities within the prisons.
As to whether the Appellant’s appeal has high chances of success the submissions do not bring out the contradictions alleged to be in the Prosecution’s case or how the elements of the offence of defilement have not been proved. This should be left to be canvassed during the hearing of the main appeal once Records are prepared, filed and served and directions taken.
Being that the trial court file has already been availed and the proceedings have already been typed the onus is now on the Appellant to prepare and file his Record of Appeal timeously and thereafter fix the Appeal for hearing and determination expeditiously/ at the earliest convenience.
In the end, I find that the application for bail/ bond pending appeal is not merited. It is declined.
Dated, signed and delivered this 5th day of June, 2025