(an application for bond pending appeal under Sec. 356 & 357 of the Criminal Procedure Code and Article 49 (1) (h) of the Constitution of Kenya) JOSHUA MWAKWAMI ………………………...………………………………….APPELLANT VERSUS REPUBLIC ……………………………………………………………………….. RESPONDENT RULING The appellant was on 11th December 2008 convicted of the charge of defilement of a child contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. He was sentenced to serve 20 years imprisonment. The appellant was aggrieved by the conviction and sentence and appealed to this court. On 22nd May 2012, the appellant filed an application pursuant to Section 356 and 357 of the CPC and article 49(1) of the Constitution. He sought orders to be granted bail pending the hearing and determination of this Appeal. The grounds of the application are that the appeal raises arguable grounds and has high chances of success. That the applicant was previously on bond in the lower court and fully and dutifully compliance with the terms of bond by attending the hearings without fail. That the offence is bailable and the appellant is a Kenyan citizen and unlikely to abscond. The application is supported by the annexed affidavit of the appellant. Mr. Osango Advocate appeared for the appellant. Mr. Limo appeared for the state. Mr. Limo did not object to the application. The right to be granted bail pending the hearing and determination of a case or an appeal is available to all persons. However the court has the discretion to grant or refuse bail depending on the circumstances of each case. The court is required to take into consideration settled principles of the law in determining whether or not to grant bail pending hearing of a case or pending the hearing of the appeal. The principles to be considered by the court were set out in the case of MWAURA VS REPUBLIC (1986) KLR 600. The said principles include the following; the nature of the offence, the strength of the evidence, the character and behavior of the accused and the seriousness of the punishment to be meted if the accused is found guilty. The mother of all considerations is whether the accused will turn up at the appointed place and time for the trial; any exceptional circumstances and whether the accused will interfere with the witnesses if released on bond. Whereas the above principles are applicable in regard to applications made by accused persons seeking to be released on bail pending trial, the same principles are applicable when the court is considering whether to release an appellant pending the hearing of an appeal. In the case of an appellant seeking to be released on bail pending the hearing of an appeal, the court has to put in consideration the added fact that the appellant having been convicted will most likely have an incentive to abscond if released on bail. Having carefully considered application and perused the record of appeal in its entirety, this court’s view is that the appellant is likely to abscond if released on bail pending the hearing and determination of the
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appeal. This is because the appellant has already been convicted and sentenced to 20 years imprisonment. I have considered the submissions by the appellant that his appeal has high chances of success. There is nothing in the petition of appeal that points to the likelihood that the appeal will succeed, without this court having the benefit of hearing the submissions during the actual appeal. In the premises therefore the appellant’s application to be released on bond pending appeal is unmeritious and is hereby dismissed. Dated, delivered and signed at Kakamega this 30th day of July, 2012 B. THURANIRA JADEN JUDGE
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