Ezekiel Kimwangi Njagi v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITUI CRIMINAL APPEAL NO. 1 OF 2019 EZEKIEL KIMWANGI NJAGI...........APPLICANT VERSUS REPUBLIC..........................................RESPONDENT (Being an Appeal from Original Conviction and Sentence in Mwingi Senior Resident Magistrate’s Court Criminal Case No. 596 of 2015 by Hon. W. G. Kirugumi (SRM) on 28/12/18) RULING 1. Ezekiel Kimwangi Njagi, the Applicant was convicted of the offence of Rape and sentenced to ten (10) years imprisonment. He filed a Memorandum of Appeal and approached this Court by way of Notice of Motion seeking bail pending Appeal. 2. The Application is premised on grounds that the Appeal contains serious points and raises arguable grounds and has overwhelming chances of succeeding; that the Applicant has a medical condition and his continued incarceration may jeopardize his health; he is a nurse at Waita Health Centre and is likely to lose his employment, he was on bond of Kshs. 200,000/= but did not abscond and that he is a sole breadwinner of his family that consists of a wife and three children. 3. The Application is supported by an affidavit deponed by Okello H. O. Advocate who reiterated what is stipulated on the body of the Application and added that the Applicant is of poor health, requires constant medical attention with special diet and that his health condition is likely to deteriorate while in custody serving sentence and that the Respondent does not stand to suffer prejudice if the Application is allowed. 4. In response the Respondent through learned State Counsel Mr. Mamba swore an affidavit where he deposed that the affidavit sworn and the annextures thereto do not prove the existence of exceptional circumstances to warrant the Court to grant bail pending Appeal. He dismissed treatment notes issued bearing a stamp impression of Mwingi Sub-County Hospital as being outdated therefore having not disclosed any reason to warrant granting of bail. He called upon the Court to uphold the rule of law and find that the presumption of innocence did not apply as the Applicant was already convicted. 5. In his oral submission Counsel for the Applicant Mr. Okello urged that the charge was defective for failure to include the words “unlawful” in the particulars of the offence. In this regard he relied on the case of Daniel Nyareru Achoki vs. Republic (2000) eKLR where the Court held that: “The particulars of the offence of attempted rape upon which the appellant was convicted did not state that the attempted carnal knowledge was unlawful and was without the consent of CKK (PW1). That the charge did not disclose an offence known to the law and the appellant was wrongly convicted on it.” 6. This, in his opinion satisfied the requirement that the Appeal had a high chance of succeeding. 7. In response, the learned State Counsel, Mr. Mamba urged that there were no exceptional circumstances that required the Appellant being released on bail. That bail at this stage is not automatic and that the Appellant faced an alternative Count that bears the word “unlawful” and that an error of omission is curable. 8. I have duly considered rival submissions of both Counsels. In the case of Dominic Karanja vs. Republic (1986) KLR 612 the Court of Appeal stated thus: “a. The… appeal had such overwhelming chances of success, there is no justification for depriving the Applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances. (Emphasis added)

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