Anthony Odhiambo Ojwang v Republic [2016] KEHC 1136 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MIGORI

HCCR MISC   NO. 16 OF 2016

ANTHONY ODHIAMBO OJWANG ….........................................................APPLICANT

VERSUS

REPUBLIC..............................................................................................RESPONDENT

RULING

The applicant ANTHONY ODHIAMBO OJWANG filed this application under Section 357 Criminal Procedure Code seeking that the 20 years sentence passed on 10th December 2010 be suspended, and he be admitted to bail pending the hearing  of his appeal which has been filed in the Court of Appeal at Kisumu.  He states that his appeal has good chances of success.

The applicant explains that he delayed in filing his appeal due to communication breakdown between him , his family members and his advocate.  After his initial appeal was dismissed by the High Court sitting at Kisii,  he then petitioned for a retrial before the  High Court at Migori, but this too was dismissed out of the 20 years sentence, he says he  now has a balance of  8 years  have begun his term  on 10/12/10.  He fears that the hearing of his appeal is likely to take so long, that by the time it is heard, he may have completed his term and the appeal would rendered nugatory – he is due for a normal release in 2024.

At  the hearing of this application the appellant submitted that he is hypertensive and diabetic and is  not able to access some of the medicaments he requires to manage his  condition.

In opposing the application, Miss Owenga on behalf of the DPP submitted that the appeal by  the applicant has already been admitted and is due for hearing  in Kisumu.

In his written submissions the applicant argues that he is of good character and is willing to observe any conditions  the court may attach to his release on bail.   It is his contention that he  is not a flight  risk and his release will not undermine or disturb public  order or security in any way.  Further that in any event the period, left for him to  complete sentence is shorter than the period  he has served.

The case of JIVRAJ SHAH   Vs  REPUBLIC  [1986] KLR page 605 discussed in detail factors  which a court  should  consider when dealing with the issue of bond  pending appeal  and stated as follows:-

The principle consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the court can fairly conclude that it is in the interest of justice to grant bond.

“If it appears prima facie from the totality of the circumstances that the  appeal is likely to be successful on account of some substantial, court of law to be urged and that the  sentence or substantial part of it will be served by the time the appeal  is heard, conditions of granting bail will exist.”

I have  not seen any memorandum of appeal annexed by the applicant first to demonstrate that he has  an arguable appeal.   Certainly it is  not expected of this court at this part to determine   into the merits of each ground of appeal but at least there must be a demonstration that prima facie  the prospects of success of the  appeal are high [See page 27 paragraph 4. 3 on Bail and Bond Policy conditions.

Secondly, is the issue as to  whether the applicant has  demonstrated that there are exceptional circumstances – he endeavoured to do so by producing medical  records showing he is diabetic  and hypertensive.   However, there is nothing to suggest that the condition  cannot be adequately attended to by medical personnel while he is serving imprisonment, in fact the records show he has  been receiving  medical attention and medication has been prescribed for him.   There is nothing exceptional demonstrated.

Lastly is the question as to whether the applicant will have served a substantial part of the sentence on account of a  busy court of Appeal diary.    The applicant was sentenced to  serve 20 years imprisonment.  He  has so far served eight years,  and according to his computation he has another eight (8) years to complete  so as to have a normal release in 2024.  That  balance would not  easily persuade him to attend  court and there would be  every temptation to flee the jurisdiction of the court.   My own assessment is that the balance of  sentence to be served and the history of  losing his case at two different levels i.e at the magistrates court and  before the Court of Appeal, predisposes him to being a flight risk, I therefore  find no basis upon which to grant his application and the same is dismissed.

DATED, SIGNED and DELIVERED at MIGORI this 25th  day of November,  2016.

H. OMONDI

JUDGE