REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CRIMINAL APPEAL NO. 118 OF 2015 BENSON MUSUMBI……APPELLANT/ACCUSED VERSUS REPUBLIC…………………......….RESPONDENT (From the original conviction and sentence of Senior Resident Magistrate Kahuya I.M delivered on 28th July, 2015 at Machakos, Criminal Case No. 17 of 2015). RULING OF THE COURT 1. The accused person BENSON MUSUMBI was charged with the offence of Attempted Defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act No.3 of 2006.The particulars of the offence are that: “On the 2nd day of January 2015 at [particulars withheld] within Machakos County the accused person attempted to cause his penis to penetrate the vagina of J.N a child of 9 years.’’ 2. The accused was found guilty , convicted and sentenced through a judgment delivered on 28 th July, 2015 by the Senior Resident Magistrate Hon Kahuya I.M at Machakos 3. By a Notice of Motion dated 24th March of 2016 the accused person now seeks to be released on bail or bond pending the hearing of his appeal on such reasonable terms as the court may determine. The application has been brought under Section 49(1) (h) of the Constitution. 4. The application is premised on five grounds on the face of the Motion which are that: i. The applicant has lodged Machakos HCCR No.118 of 2015 against both conviction and sentence ii. The applicant in his appeal has set forth strong and reasonable grounds of appeal which appeal has overwhelming chances of success. iii. The conviction and subsequent sentence of the appellant (the accused in lower court Machakos Criminal Case No.17 of 2015) were illegal. iv. It is against the principles and tenets of law, jurisprudence and justice for the appellant/applicant to continue serving an illegal sentence while this appeal is pending. v. The appellant/applicant will abide by any bond and or bail terms and conditions that the
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honourable court may impose. 5. The application is further grounded on a supporting affidavit sworn by Mutinda Kimeu Advocate for the accused, of even date. He went on to depone that the applicant having been charged with the offence of attempted defilement contrary to Section 9(1) and 9(2) of the Sexual Offences Act No 3 of 2006 was convicted for twelve years imprisonment. 6. He went on to state that the applicant preferred an appeal against the judgment and order being Machakos HCCR No.17 of 2015, annexed and marked “MK-1’’ is a copy of the petition of appeal and judgment. Which appeal was pending hearing and final determination. 7. Further he said that the appeal had very high chances of success since the facts as presented in the lower court did not disclose any offence being committed under section 9(1) as read with Section 9(2) of the Sexual Offences act No.3 of 2006. 8. He deponed that the applicant who was serving sentence at Machakos G.K. Prison would abide by any bond and or bail terms the honourable court may impose, and would be willing to appear in court whenever required by the honourable court. Respondent’s Replying Affidavit 9. The Respondent in opposing the application filed a replying affidavit dated 10 th May 2017 sworn by Tabitha Saoli Prosecution counsel. She went on to state that the applicant had not demonstrated that his appeal has any chance of success since that was an assertion that can only be proved upon full hearing of the appeal. 10. She went on to depone that the solemn assertion that the applicant will not abscond if released was not sufficient ground for realising a convicted person on bail/bond pending appeal. The applicant had therefore failed to satisfy the extreme high standard for bail/bond pending appeal per the Cardinal Principles of Criminal Law. She prayed that the application be dismissed and the matter be set down for hearing. 11. The Application was canvassed by way of written submissions by both parties. Submissions by the Appellant 12. The appellant filed submissions on 30th March, 2017.The applicant in his submissions relied on Article 49(1) (h) of the Kenya Constitution 2010 that guarantees all accused persons the right to be granted bail, unless there are compelling reasons not to be released. 13. He went on to rely on Section 357 (1) of the Criminal Procedure Code which provides for admission to bail or suspension of sentence pending appeal provides 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:’’ 14. Placing reliance on the judicial authorities he cited the case of Somo –Vs-Republic (1972) EA which case was quoted in approval in the case of Anthony Gathogo Kiama & 2 Others –Vs-Republic (2009) eKLR (Nyeri Criminal Appeal 145 of 2008,147 of 208 & 148 of 2008)thus; “The most important ground is that the appeal has an overwhelming chance of being successful; in that case there is no justification for depriving the applicant of his freedom’’
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15. Further in Charles Owanga Aluoch –Vs-Director of Public Prosecutions(2015)eKLR that provided that the court in granting the appellant bail pending appeal noted that; “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. After conviction that right is at the court’s discretion and upon considering the circumstances of the application.’’ They outlined the principles and guidelines upon which bail pending appeal is anchored as outlined in Jivraj Shah vs. Republic (1986) KLR 605 which are:i. The principal consideration in an application for bail pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interests of justice to grant bail. 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 weight and relevance of the points to be argued. 16. They further went on to submit that the applicant has annexed his petition of appeal which clearly sets down his grounds of appeal. One of the grounds of appeal was that there was no proper identification, that evidence of PW2 (complainant) was not corroborated and had contradictions. Further that the crucial witnesses including the arresting officer were not called to testify and the act of penetration was not established on PW.2. He also stated the Magistrate disregarded his defence and that he was convicted on insufficient evidence. 17. It is against these grounds that they prayed to court to grant the appellant bail and also based on the fact that while the appellant was on trial he was on bond and had complied with all conditions the court had imposed on him. Respondent’s Submissions. 18. The respondents filed their submissions on 24th May 2017. They went on to indicate that the threshold for an application and/ or grant of bail pending appeal is much higher than that of an accused person and therefore there ought to be sufficient grounds advanced for the same and therefore at that stage the presumption of innocence no longer applies. 19. They relied on the case of Jeremiah Mwangi Ngatia- Vs-Republic, Criminal Appeal No 110 of 2011 where the court in considering whether or not to grant bail pending appeal, ought to bear in mind that it involves the proposition that a person who has been found guilty and convicted by a court of competent jurisdiction and whose sentence of imprisonment has not been set aside, must not be let loose on the community instead of staying in prison to serve sentence which is prima facie deserved. 20. They went on to indicate that the appellant having been convicted, his constitutional freedoms and rights were significantly circumscribed by his conviction .They relied on Somo –Vs-Republic (Supra) and therefore an appeal with great chances of success must be demonstrated before bail pending appeal can be granted. 21. While relying on the conditions of bail pending appeal as set out in the case of Dominic Sibi Peter Vs- Republic (2014) eKLR, they submitted that the applicant had not advanced any ground to satisfy the Honourable court that justice will be endangered if he is not granted bail pending appeal. Hence the
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appellant had not demonstrated that his appeal has overwhelming chances of success. 22. In conclusion they prayed to court to find that the application lacks any exceptional circumstance to warrant the grant of bail pending appeal and thus should be dismissed in its entirety. Determination 23. I have perused the petition of appeal and also the proceedings and judgment in this case. I do not agree with the applicant that his appeal has overwhelming chance of success. In order not to pre-empt the appeal I will just mention that it may not lead to an outright discharge. 24. When considering an application for bail pending appeal the court has discretion in the matter. However, that discretion must be exercised judiciously. The applicant in this case was convicted of attempted defilement. He was sentenced by the SRM Court at Machakos on 28 thJuly 2015. I can state that the Appeal may be arguable but I do not see it having an overwhelming likelihood of success. 25. Having considered the application I decline to grant the Applicant bail pending his appeal. He should stay in custody until his appeal is heard. The Applicants application is dismissed. The Appeal be listed for hearing on priority basis. Signed, Dated and Delivered at Machakos this 8th day of November, 2017. D.K. KEMEI JUDGE In the presence of: Mutinda Kimeu for the Applicant/Appellant Mrs Saoli for the Respondent. Kituva - Court Assistant
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