Peter Kinyua Ireri & John Muchangi Njiru v Republic [2013] KEHC 2875 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CRIMINAL APPEAL NO. 22 OF 2013

(Consolidated with Criminal Appeal No. 24 of 2013)

PETER KINYUA IRERI …………………..........… 1ST  APPELLANT/APPLICANT

JOHN MUCHANGI NJIRU  ……..………………….2ND APPELLANT/APPLICANT

VERSUS

REPUBLIC .....................................................................PROSECUTOR

From original conviction and sentence in Criminal  Case No.478 of 2011 at the Chief  Magistrate’s Court at Embu  by Hon. R.O. OIGARA  –Ag SPM  on 30/05/2013

R U L I N G

The Appellants/Applicants appeals were consolidated on 7/8/2013. They had filed applications dated 26/6/2013 seeking orders of their release on bond pending appeal.

The applications will be heard together. They are premised on the following grounds;

That the Appellants were tried on a defective charge in that the charge did not state the essential ingredients of the offence.

That the evidence tendered did not prove the charge the Appellants were convicted of.

That the sentence slapped on the Appellants was harsh and excessive and therefore wrong in principle.

The sentence was passed on wrong factual basis.

Matters were taken into account which should not have been.

That the learned trial Magistrate erred in law and facts in upholding that the Prosecution had proved their case beyond reasonable doubts.

It is also supported by an affidavit by Counsel Mr. Githinji. In his submissions he pointed out errors/omissions which he thinks favour his clients whom he says should be released on bond pending the hearing of the appeal.  M/s Ingahizu for the State did not oppose application.

The Applicants were convicted of two offences;

Preparation to commit  a felony contrary to section 308(1) of the Penal Code

Being in possession of a firearm without a firearm certificate contrary to section 4(1) as read with section 4(3) of the Firearm Act (Cap.114 Laws of Kenya).

The facts of the case are that PW1 – PW4 who are Community Policing Officers were on normal patrol when they met the two Applicants. The 2nd Applicant was carrying something in a sack. He was asked to open it and when he did a gun was recovered from therein. They were arrested and charged. They had no certificate authorizing them to be in possession.  PW5 confirmed that the gun was a firearm under the Provisions of the Firearm Act.

In their unsworn defence they denied the charge facing them.

The general presumption is that when one has been convicted she/he has been properly convicted.  Conditions which the Court should consider in an application for bond/bail pending appeal are;

The appeal has high chances of success and is not frivolous and vexatious.

Exceptional circumstances exist

There are chances that the Applicant may complete the sentence before his/her appeal is heard.

Issues of the particulars in the charge sheet and the evidence adduced have been raised.  I have had a chance of pursuing the record.  My finding is that the Applicants have an arguable appeal.

Considering and applying the above conditions and in particular condition number one (1), I do find this to be an instance where I should exercise my discretion and admit the Applicants on bail.

Each Applicant to execute a bond of shs.150,000/= with a surety in similar sum.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 8TH DAY OF JULY 2013.

H.I. ONG'UDI

J U D G E

In the presence of;

Ingahizu for State

Mr. Githinji for Appellants/Applicants

Kirong – C/c