Eliud Mukhwana v Republic [2015] KEHC 4959 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CRIMINAL CASE NO.  23 OF 2015

ELIUD MUKHWANA …………….………………..……………. APPLICANT

VERSUS

REPUBLIC…………………………………………………… RESPONDENT

RULING

1. The appellant herein Eliud Mukhwana  was convicted and sentenced for the offence of causing grievous harm for 3 years on the 16th of February, 2012. Being aggrieved by the conviction and sentence he preferred this appeal,  now pending  hearing and determination.

2. The application is dated 4th March 2015 brought under Section 357 of the Criminal Procedure Code.  The appellant is seeking to be released on bond pending hearing of the appeal on the grounds that, the appeal is arguable with an overwhelming chance of success and  he was  on bond during trial.

His application is supported by an affidavit dated 4th March 2015 reiterating his arguments that his appeal has an overwhelming chance of success,  he was on bond during trial, he is willing   to abide by  the terms set and the appeal will be rendered  nugatory and/or an academic exercise if he serves the  sentence.

In a further affidavit filed on the 13th of March 2015, the  applicant stated that he has  been sick since  his incarceration.

Mr. Otsiula appearing for the applicant reiterated the above points adding that the appellant  is  67 years.

3. The application was opposed by Miss Koech appearing for the State.  She filed grounds of opposition stating that the appeal  does not have any chance of success and  there are  medical facilities available to prisoners. In her submission,  argued that the appellant is likely to abscond if released considering the sentence now facing him.

4. I have considered the rival submissions by counsel on record. So as not to prejudice the appeal I will not comment on whether there is an overwhelming chance of success or not but will safely say that this is an arguable appeal. In arriving at  this ruling I am 4. guided by the following decisions.

Dominic Karanya vs. Republic 1986 [KLR] at page 612 where the Court of Appeal stated inter alia

“The most important issue was that if the appeal had such overwhelming chances of success there is no justification for depriving the appellant his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.

The previous good character and the hardships, if any facing the family were not exceptional or unusual factors.  His health per se would also not constitute an exceptional circumstance where there  existed  medical  facilities for prisoners.

A solemn assertion by an applicant that he will not abscond if released even if it is  supported by  surerities is not sufficient ground for releasing a convicted person on bail pending appeal………”

In Abdi vs. Republic [1991] KLR at 171 the court held inter alia,

“An application for bail pending appeal is to be granted in rare and exceptional circumstances.

To admit an applicant to bail is the decision of the court which must be   judicially exercised keeping in  sight all  the facts relating  to the application, all the matter material to the trial at the lower court, the grounds submitted in the petition and the chances of success and the nature of the trial.  The time it would take for the appeal to be prosecuted and determined is by itself not a sufficient ground.”

5. The applicant by virtue of the sentence meted out   lost the presumption of innocence.  He has a sentence   hanging over his head and the consideration for the bond is different from consideration for one awaiting trial.

The applicant cited 3 reasons

Health

Overwhelming chances of success

Willingness to abide by terms of bond.

6. From the above cited authorities the above 3 reasons do not  qualify an admission to bail.  The prison has medical facilities and in cases of  extreme need prisoners are   availed  health facilities in other institutions. Second it cannot be said that one can deduce from the grounds a clear chance of success, this  is a matter that will be argued at some stage for the courts determination. Thirdly there are no exceptional circumstances demonstrated.  Guided by the authorities cited above this application must fail. It is therefore dismissed.

Dated at Bungoma this 12th day of May 2015.

ALI-ARONI

JUDGE.