SINDO MWASINDO AND OMAR KUNYA LWAMBI VS State Law Office

Preliminaries

1. This Honourable Court is called upon to determine the Notice of Motion application dated 27^th August, 2024 where the Appellant/ Applicants sought to be released on bail/bond pending the hearing and determination of the appeal.
2. The Applicants averred that the only avenue available to the 1^st and 2^nd Appellant to seek bail pending appeal and the protection of their fundamental rights and freedoms as enshrined in the Constitution. The Appeal was not frivoulous in any way. There were good and sufficient reasons to warrant grant of the orders sought.
3. The Applicants are appealing the decision and conviction and subsequent sentencing of the Honourable David O. Odhiambo (Senior Resident Magistrate) Criminal Case No. E1093 of 2023 delivered at Mombasa Law Courts on 30^th July, 2024.

Analysis and Determination

1. It is trite law that a person is presumed innocent until proven guilty in a criminal trial. The burden is on the prosecution to prove that he is not innocent during the trial. Every person is entitled to bail or bond pending trial as provided for by Article 49(1) (h) of the Constitution states that: -

“(1) An arrested 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. Once a trial court has made a determination and found an accused guilty of the offence, he is no longer considered innocent for his guilt has already been established. In this regard, if such a convict dissatisfied with the outcome, his recourse is to appeal against the decision. The conditions applicable for bail pending trial and bail pending appeal are different.  After trial and conviction, an accused can no longer be presumed as innocent and bail is no longer an automatic right. In this the applicant must demonstrate that his appeal has overwhelming chances of success to be entitled to bail pending appeal. Of course, there may be other considerations.
2. Section 357 (1) of the Criminal Procedure Code provides admission to bail pending appeal, it states that:

“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. In the case of Jivraj Shah versus Republic [1986] KLR 605 the principles for grant of bail pending appeal were established as:

i) The existence of exceptional or unusual circumstances upon which the Court or

ii) 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.

iii) 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 the weight and relevance of the points to be argued.

1. These grounds can be narrowed down such as to whether the appeal has overwhelming chances of success and whether there are exceptional circumstances warranting the release of the Appellant on bail pending appeal.
2. The burden is therefore on the applicant to prove that he should be granted bail pending the hearing of his appeal. He should demonstrate that the appeal has overwhelming chances of success. I have considered the application and the submissions of the Applicants. I have also considered the judgment of the trial court and the grounds set out in the petition of appeal. The Petition of Appeal is grounded on seven (7) grounds which I have perused.

Conclusion and Disposition.

1. In my opinion, there are no exceptional or unusual circumstances that would necessitate the grant of the orders sought to warrant the release of the Applicants who as convicts have now lost the presumption of innocence. Further the Applicants have not demonstrated that the appeal will take long to be heard.
2. I am of the opinion that this is an Appeal that can be heard and determined in the shortest time possible. Accordingly, for the reasons set out above, the Appellants/ Applicants’ application for bail pending appeal is declined.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……31st.…………DAY OF ………………October………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

………………………………………….…Applicant