Nyonga David Makemba v Republic Through Director Of Public Prosecutions [2013] KECA 38 (KLR)

Court of Appeal

3 October 2013

EGE.M. Githinji ASAsike-Makhandia

William Ouko

1,506 words in judgment

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The bottom line

Kenya's Court of Appeal freed a man convicted of perjury during an election petition, setting him free on bond while his appeal is heard.

What this practically means

Executive summary

This is a ruling of the Court of Appeal at Malindi (Githinji, Makhandia and Ouko, JJ.A.) on an application under rule 5(2)(a) of the Court of Appeal Rules for bail pending appeal. The applicant, Nyonga David Makemba, was a witness in Mombasa Election Petition No. 8 of 2013 (Hassan Ali Joho & Anor vs Said Shahbal & 2 others) before Ochieng, J., who on 9th September 2013 summarily convicted him of perjury and sentenced him to three months' imprisonment. The applicant contended that the conviction was unprocedural - no plea was taken, no witness was called against him, and the conviction allegedly rested on his own admissions contrary to section 111 of the Penal Code - and that his Article 50 fair-trial rights were infringed. He had earlier withdrawn a constitutional petition on jurisdictional grounds and filed a Notice of Appeal. Before the Court of Appeal, counsel for the applicant argued that the appeal was arguable and had overwhelming chances of success and that he would likely serve his entire sentence before the appeal was heard; the respondent, while conceding arguability, submitted that exceptional circumstances had not been demonstrated. The court restated the Jivraj Shah v Republic principles governing bail pending appeal: exceptional or unusual circumstances, and an appeal likely to succeed on a substantial point of law with the sentence likely to be served before hearing. Finding the points of law substantial (with the respondent conceding overwhelming chances of success) and the three-month sentence at real risk of being substantially served, the court held exceptional circumstances existed and granted bail on a bond of Kshs.200,000 with two similar sureties or cash bail of Kshs.50,000.

Key legal issues

Principles governing bail pending appeal under rule 5(2)(a)

Holding

Bail pending appeal requires exceptional or unusual circumstances; it will be granted where the appeal appears likely to succeed on a substantial point of law and the sentence or a substantial part of it will have been served by the time the appeal is heard.

Reasoning

The court restated the principles in Jivraj Shah v Republic: the principal consideration is exceptional or unusual circumstances in the interests of justice; the second criterion is an appeal with overwhelming chances of success on a substantial point of law combined with probable service of the sentence before hearing; the overall approach is a consideration of the particular circumstances and the weight of the points to be argued. The respondent conceded the appeal was arguable with overwhelming chances of success.

p. 3

Application of the principles to the applicant's case

Holding

The substantial points of law raised (conviction allegedly based on the applicant's own admission contrary to section 111 of the Penal Code, and breach of Article 50 fair-trial rights) and the probability that the three-month sentence would be substantially served before the appeal is heard constitute unusual or exceptional circumstances warranting bail.

Reasoning

The court noted the applicant was summarily convicted of perjury without a plea or witnesses, raising doubts about the legality of the conviction under section 111 of the Penal Code and Article 50 of the Constitution. It declined to express settled views on those issues at that stage but found them substantial. It also found a real probability the applicant would serve the full three-month sentence before the appeal was determined, and held these considerations together justified release on bail.

p. 3

Legal principles established

The Court of Appeal has wide and unfettered discretion to release a convicted person on bail pending the hearing and determination of the appeal once a Notice of Appeal has been given, exercisable on the Jivraj Shah principles.

Court orders

1.The application for bail pending appeal is granted as prayed
2.The applicant may be released upon execution of a bond of Kshs.200,000/- with two sureties of similar amount, or in the alternative upon depositing cash bail of Kshs.50,000/-

Authorities

Legislation

Court of Appeal RulesRule 5(2)(a)
Court of Appeal RulesRule 59
Constitution of Kenya, 2010Articles 22, 23, 28, 47, 50 and 165(3)(d)
Penal CodeSection 111

Cases cited (2)

Jivraj Shah vs Republic
[1986] KLR 605
Dominic Kranja vs Republic
(1986) KLR

On appeal from: High Court (Election Court), Mombasa; H.C. Election Petition No. 8 of 2013 (Hassan Ali Joho & Anor vs Said Shahbal & 2 others)
Jurisdiction invoked: Rule 5(2)(a) of the Court of Appeal Rules and Articles 22, 23, 28, 47, 50 and 165(3)(d) of the Constitution

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Nyonga David Makemba v Republic Through Director Of Public Prosecutions [2013] KECA 38 (KLR)", Case Analysis (2013). Criminal Application No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/38/eng@2013-10-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.