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JudgmentSEBASTIAN KIMANGA MUTUA VS The Republic8 min read

SEBASTIAN KIMANGA MUTUA VS The Republic

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS

CRIMINAL REVISION NO. E038 OF  2024

SEBASTIAN KIMANGA MUTUA..........................................................APPELLANT

VERSUS

REPUBLIC.......................................................................................RESPONDENT

RULING

Introduction and background

  1. The Application before me is the Notice of Motion dated 21st June, 2024. It seeks the following orders;
  2. That this Application be certified urgent and the same be heard in the first instant.

ii. That the applicant/appellant be admitted to bail or bond on reasonable terms pending hearing and determination of the appeal herein.

iii. That this Honourable Court do make any other and further orders it deems fit for the interest of justice.

v.    That costs of this Application be in the cause.

2.          The Application is supported by the grounds set out on its face and is supported by the Affidavit of sworn by SEBASTIAN KIMANGA MUTUA, the Applicant/Appellant

  1.     The Applicant’s case is that he was charged with the offence of gang rape contrary to section 10 of the Sexual Offences Act No.3 of 2006 and was subsequently convicted and sentenced to 15 years imprisonment on the 21st day of May 2024. Being aggrieved by the decision of the court in finding him guilty despite the overwhelming evidence that he never participated in commission of the offence charged with he filed an appeal challenging the said decision.
  2. Further the appellant made an application to be admitted to reasonable bail and bond terms pending the hearing and determination of the appeal. The grounds of the application are highlighted in the application and the attachments thereto.
  3. The Applicant further avers that his Appeal has high chances of success as evidenced by the filed Petition of Appeal and there is the highest probability that the sentence will be quashed.
  4. The Applicant also states that he had always attended court and he will do so if he is granted bail pending appeal.
  5. The Respondent opposed the application by way of grounds of opposition dated 19th September 2024 as follows:
  6. THAT the Appellant/applicant has not demonstrated in his application that the grounds stated in his petition of appeal are arguable with possible chances of success.
  7. THAT the appellant/applicant has not demonstrated unusual or exceptional circumstances which may warrant the release of the applicant on bond pending appeal.
  8. THAT the previous good character of the applicant and the hardships he is facing or likely to face do not constitute exceptional circumstances.
  9. THAT a solemn assertion by an applicant that he will not abscond if released is not sufficient ground to release a convict on bond pending appeal.
  10. THAT by failing to demonstrate that the appeal has high chances of success, the applicant has by extension failed to demonstrate that he will have served a substantial part of the sentence by the time the appeal is heard and determined.
  11. The application was canvassed through written submissions. Both parties complied by filing their respective submissions.

Applicant/Appellant’s submissions

  1. For the Applicant, it is submitted that Article 49(l)(h) of the Constitution provides that:

An accused person has the right ...

(h) to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.

  1. Section 357(1) of the Criminal Procedure Code provides as follows:

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.

  1. The Applicant submitted that, from the above-cited law, it is clearly demonstrated that the accused person’s right to bail/ bond upon conviction has not been extinguished though the provision is not in mandatory terms.
  2. Further, the Applicant urged this court to consider the case of Jivrai Shah vs. Republic [1986) KLR 605; [1986] eKLR, where the Court of Appeal held that:

t' There is not a great deal of local authority on this matter and for our part such as we have seen and heard tends to support the view that the principal consideration is if there exist exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. 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 urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist. The decision in Somo v Republic [19721 E A 476 which was referred to by this court with approval in Criminal Application No NAI 14 of 1986, Daniel Dominic Karania v Republic where the main criteria was stated to be the existence of overwhelming chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being a//owed.

The proper approach is the consideration of the particular circumstances and the weight and relevance of the points to be argued. "

  1. From the foregoing, the Applicant submitted that three issues stand out as the test before bail is granted as indicated below:
  2. Whether the appeal has overwhelming chances of success?
  3. On this issue, the Applicant submitted that he has presented a petition with weighty issues for consideration and determination. Among these issues is the defence mounted by the Applicant/Appellant that he was not at the scene of crime at the time of the commission of the said offence. That he raised a credible alibi defence and proceeded to file submissions in support of his defence however the court ignored the defence and the submissions in totality.
  4. Further he submitted that the investigating officers never conducted an identification parade and the Applicant was only identified at the dock thus making the entire prosecution case biased and contravening the rights of the Applicant as enshrined in the constitution.
  5. There are exceptional or unusual circumstances to warrant the Courts exercise of its discretion.
  6. The Applicant submitted under this ambit and reiterated the contents of the application and supporting affidavit and more so the averment that the Appellant is the sole bread winner of his young family. In particular, the ground the Appellant has a newborn who was born a few days before he was sentenced. Pursuant to the best interests of the Appellant’s minor and his family who solely rely on him for their daily upkeep he urged this court should exercise its discretion and grant him bail.
  7. In furtherance, he submitted that has never absconded court during the trial and that very reason allowed to have this matter heard and concluded within a record of one year. That this ground suggests that the Applicant is a person who will honour the court directions once ><>><>><>></><><>></><><> > ><><><><>></><><>></><><>></></></></></><>></><> <>>. ><><><><>><>></></></><><>>. ><>><><>> ><>><><>><>>> ></><><>“> (<>>).</><><>></><><>><>>></></><>><><><><><><>></></><><><>></></></></></><><>>>></><><> ></><><>></><>“><><>></><>><><>></><>(><><>><> href="http://kenyalaw.org/caselaw/cases/view/8075/" target="_blank">Jivraj Shah v Republic (supra) , Ademba v Republic -Criminal Appeal No. 70 of 1983  and Dominic Karanja v Republic (1986) eKLR 

30.          Thus, the considerations for the court to grant or deny bond pending appeal are;

a. That the Appeal has overwhelming chances of success.

b. The previous good character of the Applicant.

c. The existence of exceptional or unusual circumstances.

d. The sentence or substantial part of it will have been served by the time the Appeal is heard.

  1. I have considered the application for bond/bail pending appeal, the Petition of Appeal and the submissions filed by the Parties.  Although the Applicant argues that he raised a defence of alibi which the trial court did not consider and further that the identification parade was never conducted which are issues of law, this court is unable to verify the same in the absence of a copy of the judgement by the trial court. Had the Applicant annexed a copy of the judgment and sentence of the court below, it could have been easy for the court to know if the trial court considered the two issues of law raised by the Applicant.
  2. At this stage, the court ought to be cautious not to try and determine the Appeal. This should await the appropriate time.
  3. The grounds adduced by the Applicant call for the court to re-analyse and re-evaluate the evidence as it is obliged to (see Okeno v Republic).
  4. In my opinion, there are no exceptional or unusual circumstances that would necessitate the grant of the orders sought. The Applicant has not adduced any evidence to demonstrate that he is the sole bread winner of his young family. In particular, the ground that the Applicant has a newborn who was born a few days before he was sentenced
  5. Whereas the previous good record of the Applicant is a ground for consideration, that alone is not sufficient to warrant the grant of the orders sought.
  6. It must be remembered that during the trial, the Applicant was presumed to be innocent, right now, he has been convicted by a court of competent jurisdiction. Thus, the application of Article 49 (1) (h) of the Constitution does not apply to the Applicant.
  7. As regards the possibility of the Applicant serving his term of imprisonment or a substantial part thereof before his appeal is heard and determined, at present, this court is handling Appeals at a very exceptional rate. There are really no unreasonable delays in determining the same. The Applicant was only convicted in May 2024, to serve a sentence of 15 years.
  8. I am of the opinion that this is an Appeal that can be heard and determined in the shortest time possible.
  9. Consequently, I disallow the application and make the following orders.
  10. The Petition of Appeal annexed to the supported affidavit shall be deemed to be properly filed and the same is admitted for hearing.
  11. That through the intervention of this court’s Deputy Registrar, the Lower Court file proceedings to be availed forthwith to the Appellant’s counsel to enable him to prepare the Record of Appeal within the shortest period possible.
  12. A mention date to be fixed to confirm compliance and for directions on the disposal of the appeal

DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 18TH DAY OF MARCH, 2025.

NOEL I. ADAGI

JUDGE

In the presence of :

Applicant appearing virtually form Machakos Main prison

Ms Nzili hb for Mr. Mutava.................for Applicant

Agatha........................................ for Respondent

Milly Grace................................ Court Assistant

    SEBASTIAN KIMANGA MUTUA VS The Republic SEBASTIAN KIMANGA MUTUA VS The Republic