Nzioki v Republic [2023] KEHC 24566 (KLR)

Nzioki v Republic (Criminal Appeal E058 of 2023) [2023] KEHC 24566 (KLR) (16 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24566 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Appeal E058 of 2023

A. Ong’injo, J

October 16, 2023

Between

Dominic Muli Nzioki

Appellant

and

Republic

Respondent

Ruling

Application 1. The notice of motion application dated August 22, 2023 was brought under section 357 of the Criminal Procedure Code cap 75 Laws of Kenya and article 49 (1) (h) as read with article 50 (2) (q) of the Constitution of Kenya, 2010 and all enabling statutes and provisions of the law seeking for orders that the Honourable Court be pleased to admit the appellant to bail and/or bond pending the hearing and determination of the appeal herein.

2. The applicant also sought that an order of stay of execution of the sentence and/or order made on August 10, 2023 be issued.

3. The application is premised on the ground that the complainant’s evidence was taken without voire dire examination and therefore the trial court occasioned a miscarriage of justice and committed serious errors of the law. The applicant also averred that he is of feeble health and craved for the court’s indulgence in allowing him to be released on bond pending appeal.

4. The application was also supported by an affidavit of Dominic Muli Nzioka, the applicant, sworn on August 22, 2023 reiterating the grounds on the body of the application.

5. The application was served upon the respondent and Mr. Ngiri Wangui the prosecuting counsel filed grounds of opposition dated September 19, 2023 and said that the same does not meet the legal threshold of the orders sought. That the applicant was facing a long sentence of 7 years and it is unlikely that he will have served the sentence by the time the appeal is heard. That the applicant is likely to abscond owing to the long sentence that he is serving. He also said that the applicant’s appeal has no chances of success whatsoever as the prosecution’s evidence was overwhelming. Further, the applicant has not demonstrated any peculiar and exceptional circumstances to warrant any of the orders sought.

6. The applicant filed submissions dated September 19, 2023. The respondent did not file any submissions.

Analysis and Determination 7. This court has considered the notice of motion application dated August 22, 2023 and the grounds of opposition dated September 19, 2023, and the issue for determination is whether the applicant has satisfied the court for grant of the order of bail pending appeal.

8. Article 50(2)(q) of the Constitution provides that: -An accused person has the right …(q)if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.

9. 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:Provided that, where an application for bail is made to the subordinate court and is refused by that court, no further application for bail shall lie to the High Court, but a person so refused bail by a subordinate court may appeal against refusal to the High Court and, notwithstanding anything to the contrary in sections 352 and 359, the appeal shall not be summarily rejected and shall be heard, in accordance with such procedure as may be prescribed, before one judge of the High Court sitting in chambers.2. If the appeal is ultimately dismissed and the original sentence confirmed, or some other sentence of imprisonment substituted therefor, the time during which the appellant has been released on bail or during which the sentence has been suspended shall be excluded in computing the term of imprisonment to which he is finally sentenced.3. The Chief Justice may make rules of court to regulate the procedure in cases under this section.

10. In the case of Masrani v R [1060] EA 321, it was held that: -“Different principles must apply after conviction. The accused person has then become a convicted person and the sentence starts to run from the date of his conviction.”

11. This court agrees with the position in the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR where it was held that: -“The right to bail is provided under Article 49(1) of the Constitution but is at the discretion of the court, and is not absolute. Bail is a constitutional right where one is awaiting trial. After conviction that right is at the court’s discretion and upon considering the circumstances of the application. The courts have over the years formulated several principles and guidelines upon which bail pending appeal is anchored. In the case of Jiv Raji Shah v R[1966] KLR 605, the principle considerations for granting bail pending appeal were stated as follows:“(1)The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.(2)If it appears prima face from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be argued and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists.(3)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.”

12. The Court of Appeal in the case of Dominic Karanja v Republic (1986) KLR 612 stated that: -“(a)The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances;(b)The previous good character of the applicant and the hardships if any facing his family were not exceptional or unusual factors. Ill health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners;(c)A solemn assertion by an applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal;(d)…………..”

13. This court has considered the constitutional and statutory right to appeal on conviction as well as the decisions cited above to the effect that it is the discretion of the court to grant bail pending appeal, which discretion should be exercised judiciously. In such an application, the applicant has the burden of establishing that the appeal has high chances of success or that he has a high likelihood of serving a substantial part of the sentence before hearing the appeal.

14. Having perused the proceedings in the lower court and the judgment of the trial magistrate, this court finds that there are issues that have been raised by the appellant that require reevaluation to confirm whether the conviction was properly arrived at. In the circumstances, the application for bond pending appeal is allowed. The applicant may be released on bond of Kshs. 100,000 with a surety of a similar amount.

15. Considering that typed proceedings and judgment of the lower court are already in the court file, directions are hereby given that the appeal be heard by way of written submissions. The appellant’s advocate to file and serve submissions within 14 days. Upon service of the submissions, the Respondent will also have 14 days to file and serve their submissions. The Deputy Registrar is hereby ordered to avail Shanzu Sexual Offence Case No. E020 of 2020.

16. Hearing of the appeal on November 13, 2023.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 16TH DAY OF OCTOBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for RespondentMr. Kenga Advocate for the appellantAppellant present in personHON. LADY JUSTICE A. ONG’INJOJUDGE