Rex v Kanji (Criminal Appeal No. 46 of 1946) [1946] EACA 72 (1 January 1946)

## APPELLATE CRIMINAL

## Before DE LESTANG, AG. J.

## REX. Respondent

v.

## AKBARALI JUMA KANJI, Appellant (Original Accused No. 1) Criminal Appeal No. 46 of 1946

Criminal law—Practice—Bail pending appeal—Bail not granted save in exceptional circumstances.

A and B were convicted of assault occasioning actual bodily harm and sentenced to eight and four months' imprisonment with hard labour respectively. Both A and B appealed against conviction and sentence. The learned Magistrate released B on bail pending hearing of the appeal but refused A's application for bail.

$A$ appealed.

Held $(11-2-46)$ .—(1) It is not the practice to grant bail to an appellant after he has been convicted and sentenced to imprisonment save in very exceptional circumstances.

(2) In deciding whether exceptional circumstances exist the Court is entitled to take into consideration the good character of the appellant coupled with the delay in hearing the appeal, the fact that the appeal has been admitted to hearing and the fact that the co-appellant has been released on bail.

Appeal allowed. Appellant released on bail pending appeal.

Cases referred to: R. v. Starkie 24 Cr. App. R. 1; R. v. Habib Kara Vesta and others, 1 E. A. C. A. 197.

Kaplan (Mandavia with him) for the Appellant.

Lowe, Crown Counsel, for the Respondent.

JUDGMENT.—It is not the practice of this Court, following in this respect the practice both of the English Courts (vide Rex v. Starkie 24 Criminal Appeal Reports 1) and the Court of Appeal for E. A. (vide I. E. A. C. A. p. 197) to grant bail to an appellant after he has been convicted and sentenced to imprisonment unless in very exceptional circumstances. Thus the only point for consideration here is whether such exceptional circumstances exist.

The appellant's appeal is not likely to be heard before the end of March or beginning of April by which time I am informed he shall have served onefourth to one-third of his sentence. The mere fact of delay in hearing an appeal is not of itself an exceptional circumstance, but it may become an exceptional circumstance when coupled with other factors. The good character of the appellant may, for example, together with the delay in hearing the appeal constitute an exceptional circumstance. The appellant in this case is a first offender and his appeal has been admitted to hearing showing thereby that it is not frivolous. In addition to that there is the fact that his co-accused, who is in no respect in a different position from him as regards bail, has been admitted to bail.

I, therefore, consider that there are in this case exceptional circumstances which entitle this Court to depart from the usual rule of not granting bail.

I allow this appeal. The appellant is ordered to be released on his own bond of Sh. 1,000 plus one surety of Sh. 1,000 pending the hearing of his appeal.