Ogada v Republic [2022] KEHC 10237 (KLR)

Ogada v Republic (Criminal Appeal E003 of 2022) [2022] KEHC 10237 (KLR) (8 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10237 (KLR)

Republic of Kenya

In the High Court at Kisumu

Criminal Appeal E003 of 2022

FA Ochieng, J

June 8, 2022

Between

Daniel Okoth Ogada

Appellant

and

Republic

Respondent

Ruling

Before me is an application for the release of the Appellant on reasonable Bail or Bond terms, pending the hearing and determination of his appeal. 1. In the alternative, the Appellant asked the Court to release him on a personal Bond, pending the hearing and determination of his appeal.

2. He urged the Court to find that the appeal has a high chance of success, as the conviction was based upon illegally obtained evidence. He also intends to persuade the appellate Court that the charges preferred against him were fatally defective because of their duplicitous nature.

3. The Appellant reminded the Court that the Corona Virus Pandemic is still prevalent. Therefore, as he was predisposed to respiratory illnesses which were chronic and curable, his condition would make him an easy target for contracting the life-threatening Corona Virus, if he were to remain in prison.

4. The Appellant described the prison detention facilities as congested, and thus a breeding ground for the spread of the corona virus.

5. And as the matter which was still pending is an appeal, the Appellant reminded the Court that there would be no possibility that witnesses could be interfered with.

6. Meanwhile, because the record of the proceedings had not yet been typed, the Appellant expressed the view that it would take a long period of time before his appeal could be disposed of. In the result, he fears that unless he was granted Bail or Bond pending the hearing and determination of his appeal, he would have served a significant part of the sentence before the appeal was determined.

7. When canvassing the application, Mr. Ogeto, the learned advocate for the Applicant indicated that there were exceptional circumstances in the case, which warrant the grant of bail. He submitted that a chronic condition was, of itself, an exceptional circumstance.

8. The chronic condition he alluded to was the Appellant’s predisposition to respiratory illnesses. The Appellant exhibited medical records from Dophil Nursing and Maternity Home, to support his medical condition.

9. However, as the learned state counsel, Miss Vitsengwa pointed out, the medical records do not appear to support the Appellant’s contention. The records show that when the Appellant visited the medical facility, he had a history of suffering from the following complaints, for about one week;“Abdominal discomfortBody weaknessSneezing.”

10. At a subsequent visit to the medical facility, the Appellant had Chest Pains and a Runny Nose.

11. On the third visit he complained of Urinary irritation, Nasal blockage and body chills.

12. Although I do not lay claim to professional training in the medical field, the documents exhibited by the Appellant do not appear to contain particulars of a chronic respiratory illness.

13. Meanwhile, it is a matter of common notoriety that the whole world has been faced with an unprecedented pandemic. The Corona Virus has ravaged most countries, bringing about fatalities to massive numbers of people.

14. One of the ways of trying to avoid the spread of Covid 19 was social distancing.

15. It is a well-known fact that the prisons in Kenya host large numbers of inmates. Therefore, it is not possible for the inmates to observe the recommended social distancing. In the circumstances, it would be expected that the inmates would be more suscestible to contracting Covid 19 than those who live outside prisons.

16. However, the actual reality in Kenya has been completely different!

17. The care and attention that the Prison Service providers have put in place have been so effective that, even when umbers spiked all around us, the inmates were spared.

18. Based on the experience so far witnessed in our prisons, I find that the Appellant’s anxiety about the possibility of contracting Covid 19 is not well founded.

19. The Court is aware of the facts about the situation in Kisumu Maximum Prison and Kibos Maximum Security Prison because they are members of a Committee which was put together by the Judiciary for the purposes of regularly sharing information and knowledge on how best to enhance access to justice, whilst simultaneously enhancing safeguards against the spread of the Corona Virus.

20. As regards the strength or weakness of the appeal, I hold the view that the Court does not have sufficient material, at this stage, to enable it determine whether or not it has a high chance of success. I so hold because the record of the proceedings from the trial court has not yet been put together.

21. Based on the minimal information available, I am unable to ascertain the strengths of the appeal.

22. Finally, I note that the Appellant has the ability to pay the fine which was imposed by the trial court. Therefore, in order to secure his immediate release from prison custody, the Appellant should pay the fine. The said payment would not negate the appeal in any way.

23. And in the event that the appeal eventually succeeded, the money used to pay the fine would be reimbursed to the Appellant.

24. In the result, the application is dismissed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF JUNE 2022FRED A. OCHIENGJUDGE