Simon Ngui Irungu v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A CRIMINAL APPEAL NO. 79 OF 2017 SIMON NGUI IRUNGU...............................................................APPELLANT VERSUS REPUBLIC...............................................................................RESPONDENT [An application for bail pending appeal from the decision of M. Wachira, Chief Magistrate, in S.O. No. 30 of 2015 at Murang’a dated 1st November 2017] RULING 1. The appellant was adjudged guilty of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. He was sentenced to life imprisonment. 2. The particulars were that on 31 st August 2016 at [particulars withheld] village within Murang’a County, he intentionally caused his penis to penetrate the anus of M.N.R [particulars withheld] a child aged ten years. 3. The appellant lodged a petition of appeal on 2nd November 2017. 4. Pending the hearing and determination of the appeal, the appellant has presented a notice of motion dated 14th November 2017 pleading for bail. It is supported by a deposition of his counsel. 5. The appellant contends that the appeal has overwhelming chances of success. The appellant’s learned counsel submitted that the mandatory provisions of section 200 of the Criminal Procedure Code were not complied with. Counsel contended that the election whether or not to recall any witness belonged exclusively to the accused. In this case it was his counsel who elected to proceed from where the matter had reached. 6. It was also submitted that there were material contradictions between the evidence of the complainant and PW4. While the complainant said he was defiled inside a church, PW4 said the offence was committed in a nearby bush. It was also submitted that the doctor (PW3) did not find any injuries on the anus of the complainant. 7. In a synopsis, the appellant’s case is that there are exceptional circumstances that warrant grant of bail. 8. The application is not contested by the Republic. Learned prosecution counsel intimated that she will concede the main appeal. 9. The legal parameters in an application of this nature were well stated by the Court of Appeal in Jivraj Shah v Republic [1986] KLR 605- “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 urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist. The decision is Somo v Republic [1972] EA 476 which was referred to by this court with approval in Criminal Application No. NAI 14 of 1986, Daniel Dominic Karanja v Republic where the main criteria was stated to be the existence of overwhelming chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed.” 7. I resist the temptation to comment about the merits of the appeal. It will be the duty of the first appellate court to re-evaluate the evidence; and, determine whether it was reliable. The court will also consider whether there was an infraction of section 200 of the Criminal

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