Nancy Kanana M’mtwamari v Republic [2021] KEHC 5142 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

(CORAM: CHERERE-J)

CRIMINAL APPEAL NO. E040 OF 2021

BETWEEN

NANCY KANANA M’MTWAMARI......APPELLANT

AND

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

RULING

1. NANCY KANANA M’MTWAMARI (Appellant) was charged in NKUBU CRIMINAL 548 OF 2020with grievous harm contrary to section 234 of the Penal Code (the Act). By a judgment dated 03. 02 2021, Appellant was convicted and sentenced to serve 7 years’ imprisonment.

2.  By a Notice of Motion dated 19. 04. 2021 filed on 20. 04. 2021 brought under Section 356 and 357 of the Criminal Procedure Code, Appellant has moved the court for orders that she be admitted to bail pending the hearing and determination of the appeal.

3.  The application is mainly based on grounds THAT:

a . Appeal has overwhelming chances of success

b. Appellant is a single mother with two young children

c. Appellant is not a flight risk

d. There exist exceptional and unusual circumstances for grant of bail pending appeal

4. The application is supported by an affidavit sworn by the Appellant on 19. 04. 2021 in which she reiterates the grounds on the face of the application.  Additionally, the Appellant avers that there are no medical records to show that complainant was harmed.

5. I have considered the submission filed on behalf of both parties. Appellant holds the view that the appeal has overwhelming chances of success a contention that the state disputes.

Analysis and Determination

6. I have carefully considered the application in the light of the supporting affidavits, submissions on behalf of both parties and the cited authorities.

7.  Section 357 of the Criminal Procedure Code provides: -

(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

8. This court is thus clothed with the power to grant bail/bond with or without sureties, or to suspend execution of any sentence imposed by the subordinate court pending the hearing of the appeal.  In granting bail pending appeal, the court is obliged to consider the circumstances of each case so that the discretion is exercised judiciously and not capriciously.

9.  In the case of Jivraj Shah -vs- Republic [1980] KLR 605, the Court of Appeal set out the parameters to be considered by an appellate court in applications for bail pending appeal as follows: -

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.

c. 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.

10. In Mutua v R, [1988] KLR 497the Court of Appeal stated thus:

“It must be remembered that an applicant for bail has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal. It is not wise to set the applicant at liberty either from the point of view of his welfare or of the state unless there is a real reason why the court should do so.”

11.  In view of the foregoing, the onus is always on the Appellant to demonstrate to the court that there are good reasons why he/she should not be allowed to continue serving sentence but should be allowed to enjoy his/her liberty pending the hearing and determination of his or her appeal.

12. The contention that Appellant is a single mother with two young children and is not a flight risk are in my considered view not sufficient grounds in support of an application for bond pending appeal.

13. For the foregoing reasons, I have come to the conclusion that the Appellant has not demonstrated sufficient grounds for bond pending appeal.

14.  The Notice of Motion dated 19. 04. 2021 filed on 20. 04. 2021 is unmerited and it is accordingly dismissed.

DATED THIS 15TH DAY OF JULY, 2021

T. W. CHERERE

JUDGE

Court Assistant        - Kinoti

Appellant                     - Present

For the Appellant        -Ms. Maore Advocate

For the Respondent    - Ms. Mwaniki