John Macharia Kamau v Republic [2017] KEHC 1764 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NANYUKI

CRIMINAL APPEAL NO.  55 OF 2017

JOHN MACHARIA KAMAU …APPELLANT

VERSUS

REPUBLIC………….……. RESPONDENT

RULING

1. JOHN MACHARIA KAMAU (the appellant)was convicted before the Nanyuki Chief Magistrate’s court on 26th May, 2017 with nine counts of handling stolen goods. The court sentence the appellant to 5 years imprisonment on each count with the sentences running concurrently.

2. The appellant has filed a petition of appeal against that conviction and sentence.

3. Pending the hearing of that appeal the appellant field a Notice of Motion dated 18th September, 2017 seeking bail. That application is on grounds that his appeal has high chances of success.  That the appellant used to operate an N G O called OKOA STREET KIDS PROJECTwhich, since his incarceration is at verge of collapse. That he had been on bond while his trial proceeded and that he did not fail to attend court. That he is a man of good character. That he has a family of 5 children and one of those is attending university while another is attending Secondary School. That he is the bread winner of the family.

4. As I begin to consider the appellant’s application it is important to state that he is now a convict and the considerations of bail are quite different for him as opposed to when he was attending his trial. This was  clearly stated by: Harris  J in the case of CHIMAMBHAI  VS REPUBLICwhere he  stated as follows:-

“the case of an appellant under sentence of imprisonment seeking bail lacks one of the strongest elements normally available to an accused person seek bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases…..”

5. One of the grounds upon which appellant relies upon in his application is that he was operating an N G O before his conviction and sentence.   He was sentenced on 26th May 2017. The annexed certificate of registration of the N G O, which he stated he operated shows that it was registered on 13th July 2017. In other words the N G O was registered after he was sentenced. How then can the appellant depone in his affidavit that he operated that N G O before his sentence. That can only amount to a lie.

6. The major consideration in a bail application pending appeal is whether the appeal has high chances of success. If indeed the appeal has overwhelming chances of success there would be no justification to deprive the appellant his liberty. See the cases DOMINIC KARANJA VERSUS -REPUBLIC [1986] KLR 612andSOMO – V- REPUBLIC 1972 E A 476.

7. The granting of bail is also always at the discretion of the court. Of course as always that discretion should be exercised discerning the provisions of the law.

8. I have perused the judgment of the trial court and in my view I cannot state that the appellant’s appeal has high chances of success. It is because of that that the appellant’s application dated 18th September, 2017 is declined and dismissed.

Dated and Delivered at Nanyuki this 6thDecember2017

MARY KASANGO

JUDGE

Coram

Before Justice Mary Kasango

Court Assistant: Njue

Appellant John Macharia Kamau……......

For state:  ……………………......................

Language .....................................................

COURT

Ruling delivered in open court

MARY KASANGO

JUDGE