Wilber Njema Mwandago v The Republic

person. Further, the prosecution failed to present crucial evidence such as CCTV or forensic evidence despite its relevance. 9. That, he raised an alibi defence which was not considered which was not adequately considered at trial. 10. Further, that the applicant was admitted to bond throughout trial which he fully complied and is thus not a flight risk. Written submissions 11. In his submissions dated 28th July, 2025 he relied on the authorities in Daniel Karanja vs Republic (1986)KLR 612, Jivraj Shah vs Republic (1986)KLR 605, Mutua vs Republic (1988) KLR 497, Abdi vs Republic (1991) KLR 171 to the end that he is deserving of the grant of bail pending appeal. 12. He submitted his appeal has overwhelming chances of success, and the instant presents exceptional circumstances as he is a father of young children who depend on him for sustenance, he is a first offender with no criminal record, his conduct in the trial court was commendable, he is not a flight risk and the likelihood of delay in the hearing of the appeal will render his appeal nugatory if he completes his sentence before the matter is determined. Analysis and Determination 13. The provisions of Section 357 (1) of the Criminal Procedure Code provide for admission to bail pending appeal, in the following terms: “ 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. Whilst Article 49(1)(h) of the Constitution provides that an accused person has the right to be released on bond or bail, on reasonable conditions pending a charge or trial unless there are compelling reasons not to be released, a similar position does not apply for a convicted person. 15. In the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR it was held that: “ After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored. In the case of Jiv Raji Shah v R [1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows: “ 1. The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail. 2. If it appears prima face 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13342/eng@2025-09-25 2

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of it will have been served by the time the appeal is heard, conditions for granting bail exists. 3. 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. In this instance, as earlier noted the applicant was charged with the offense of Defilement contrary to Sec 8 (1) as read with Sec 8 (2) of the Sexual Offences Act No. 3 of 2006, and an alternative charge of committing an indecent act contrary to Section 11 (1) of the Act. The particulars of the charges are that on 16th July, 2021 at Tudor area in Mvita Sub-county within Mombasa County the appellant unlawfully and intentionally caused his penis to penetrate the anus of KRS a child aged 11 years, or alternatively intentionally and unlawfully caused his penis to touch the anus of the said child. After trial he was found guilty on the main charge and sentenced to life imprisonment. 17. As grounds for his application pending appeal, he simply argues that he has a reasonable appeal with high chances of success, and that the trial court’s record evidence that he previously complied with his bond terms as is issued thereto. Further, there are exceptional circumstances as he is a father of young children who depend on him for sustenance, he is a first offender with no criminal record, and the likelihood of delay in the hearing of the appeal will render his appeal nugatory if he completes his sentence before the matter is determined. 18. It is noteworthy that the respondent was not opposed to the instant application. 19. In the case of Jivral Shah V. Republic (1980) KLR 605 the Court of Appeal addressed itself on parameters to be considered by appellate Courts in an application for bail pending appeal that: a. 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. b. 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 substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist.” 20. On the aspect of demonstration of exceptional or unusual circumstances, the court observes that, the appellant has not demonstrated any unusual or exceptional circumstances to warrant the grant of bond pending appeal. Previous good character, his fatherhood or the fact that he never breached the bail terms in the trial court are not exceptional or unusual circumstances as highlighted above. For what is worth, at the trial court the appellant was simply an accused person, entitled to his constitutional right of presumption of his innocence until proven guilty. In the instance, he is a convict serving life imprisonment. 21. As to the prima facie likelihood of the success of the appeal, there is little to go by. In my view, in an application for bail pending appeal the burden weighing against the Applicant is to demonstrate to the court through the grounds of appeal set by the petition, that he prima facie has an overwhelming chance of success and not to simply allude out of his opinion of high chances of success of the appeal. This court has similarly considered the grounds as set out in his petition of appeal cautious not to https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13342/eng@2025-09-25 3

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delve deep into the merits of the case, and save for the usual grounds of appeal, nothing is deducible on account of some substantial point of law, towards an overwhelming chance of success of the appeal. 22. Further, noting that the applicant is serving a sentence of life imprisonment recently issued on 2nd July, 2025, it cannot be said that by the time the appeal is heard and determined he will have served a substantial part of the term of sentence which may be irreversible and a great punishment, should the Appeal be successful. 23. In the foregoing, the application fails to the extent held hereinabove. The hearing of the appeal shall be expedited. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI VIRTUALLY THIS 25TH DAY OF SEPTEMBER, 2025. W.K. MICHENI JUDGE In the presence of; For the Applicant(s).........in Person For the Respondent....Mr Sirima Court Assistant......Ms Bebora Signed By/For: HON. LADY JUSTICE WENDY MICHENI THE JUDICIARY OF KENYA. MOMBASA HIGH COURT HIGH COURT CRIMINAL DATE: 2025-09-25 10:06:08 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13342/eng@2025-09-25 4

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