Murunga v Republic [2022] KEHC 16526 (KLR)

Murunga v Republic (Criminal Appeal E033 of 2022) [2022] KEHC 16526 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16526 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Appeal E033 of 2022

RB Ngetich, J

December 15, 2022

Between

Lydia Murunga

Appellant

and

Republic

Respondent

Ruling

1. By the application dated June 4, 2022, the appellant seeks release on bond pending appeal under the provisions of section 357 of the Criminal Procedure Code (2012). The application is premised on the grounds that the appellant is not a flight risk; she was admitted to bond in the Chief magistrate’s court and attended all court without fail, the appellant is unwell and needs to seek proper medical attention and supervision, the appeal has a high chance of success and that the appellant is a law-abiding citizen.

2. The application is supported by the annexed affidavit sworn by the appellant Lydia Murunga on June 4, 2022. She reiterates the grounds of the application.

3. Counsel for the state Mr Kasyoka was not opposed to the application.

4. The accused was charged with the offence of sexual assault contrary to section 5 (1) (a) (1) (2) of the Sexual Offences Act No 3 of 2006.

5. An application for bond pending appeal is not a constitutional right as compared to bail pending trial. Section 357 of theCriminal Procedure Code provide as follows:'(1)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:

6. The case ofJivraj Shah v Republic [1986] eKLR sets out the principles for granting bail/bond pending appeal as follows:-a.The existence of exceptional or unusual circumstances upon which a court of appeal can fairly conclude that it is in the interest of justice to grant bail.b.Whether the appeal has overwhelming chances of success.c.Whether there is a likelihood of the appellant having served a substantial part of the sentence by the time of appeal is heard and determined.

7. The court file has only a copy of the judgment and the application; the trial court file has not been availed; without the trial court proceedings/file it will be difficult for this court to establish whether the appellant has met the threshold required by law for granting bail pending appeal.

8. In this circumstance, I decline to allow application for bond pending appeal at this stage. Applicant is at liberty to renew application.

Final orders: - 1. The application for bond pending appeal is hereby dismissed.

2. The applicant may renew bond application at a later date.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBU THIS 15TH DAY OF DECEMBER, 2022. .............................RACHEL NGETICHJUDGEIn the Presence of :Kinyua/Martin – Court AssistantsAppellant – PresentMr. Kasyoka for StateMrs. Ashioya for Appellant