Wesonga v Republic [2023] KEHC 25140 (KLR)

Wesonga v Republic (Criminal Appeal E123 of 2022) [2023] KEHC 25140 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25140 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Appeal E123 of 2022

JRA Wananda, J

November 10, 2023

Between

Brayan Wesonga

Applicant

and

Republic

Respondent

(Appel against Judgment delivered on 19/12/2022, in Eldoret Chief Magistrate’s Court Criminal Case No 43 of 2017)

Ruling

1. By the Judgment delivered on December 19, 2022, in Eldoret Chief Magistrate’s Court Criminal Case No 43 of 2017, the Appellant was convicted of the offence of defilement contrary to section 8(1)(3) of the Sexual Offences Act. He was sentenced to serve 20 years imprisonment. Being dissatisfied with the conviction and sentence, the appellant filed this appeal on December 30, 2022.

2. What is now before the court is the appellant’s notice of motion dated March 3, 2023 and filed on March 6, 2023 which seeks the following orders:i.That the Honourable court is pleased to grant and/or admit the Applicant herein to bail pending the hearing and determination of the Criminal Appeal, to wit, Eldoret HCCRA No E123 of 2022. ii.That upon granting prayer (1) above, the Honourable court be pleased to suspend execution of the sentence and/or order appealed sic) against pending the hearing and determination of the appeal herein.iii.Costs of this application be borne by the applicant.iv.Such further and/or other orders be made, as the Court may deem fit in the interest of justice

3. The application is filed through Messrs Chumba & Koech Advocates and is stated to be brought under the provisions of section 356 and 357 of the Criminal Procedure Act, cap 75 and article 50 and 51 of the Constitution. The grounds of the application are as stated on the face thereof and it is supported by the undated affidavit sworn by the appellant.

4. In the affidavit, the Appellant deponed that he was on charged on June 22, 2018, the matter was heard and the court delivered its Judgment on December 19, 2022, the court made a finding that the offence was proved and convicted and sentenced him to 20 years jail term, he has filed this appeal which is arguable and has overwhelming chances of success, he has obtained copies of the typed proceedings and is working on compilation of the record of appeal to enable the appeal be admitted, there is likelihood that the hearing and determination of the appeal shall delay insofar as the same has not been admitted and set down for hearing, the Appeal may be rendered nugatory due to the fact that the same may be heard and determined long after substantial period of sentence has been served and that he is willing and ready to abide by any reasonable bail terms that this court shall be pleased to impose.

5. The Appellant deponed further that he had been admitted to bond pending trial in the subordinate Court and at no time did he skip bond, he undertakes to attend Court whenever required until the final hearing and determination of appeal, the subordinate court had admitted him to bond of Kshs100,000/= with one surety of like sum, it is therefore necessary that this court be pleased to release him on bail pending appeal since this court is conferred with such jurisdiction, given the fact that the offence of defilement that he was convicted of is a bailable offence, this court should exercise its discretion in his favour and admit him to bail pending appeal, the medication that he uses for treatment is expensive, he has been rendered helpless and not able to generate any income to purchase the same and that the prison authority is unable to provide him with the requisite medication thereby worsening his state of health.

Response by the State 6. The State/Respondent opposed the application vide the grounds of opposition dated March 23, 2023. The grounds cited are that there are no circumstances indicating that the appeal is likely to succeed, there are no exceptional or unusual circumstances to warrant the grant of bail pending appeal and there is no danger that the appellant will have served a substantial part of the sentence before his appeal is heard and determined.

Hearing of the Application 7. Pursuant to directions given, the application was canvassed by way of written submissions. The appellant’s Submissions were filed through Messrs Kipkorir Kipkorir CK Advocates which, curiously, is a different law firm from the one that had filed the application. I have not come across any notice of change of advocates in the court file. Further, the submissions is not dated and does not also bear a court stamp. Be that as it may, in the interest of justice, I will still consider it despite these apparent irregularities.

8. The state/respondent also filed its Submissions on the same March 23, 2023 through Senior Prosecution Counsel Emma Okok.

Appellant’s Submissions 9. Counsel for the Appellant submitted that in exercising its discretion, this Court should find that the appellant has met the conditions set out in Jivraj Shah v Republic (1986), article 49(1)(h) of the Constitution gives an arrested person the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released, the appeal has a huge likelihood of success, it raises triable issues, the appellant was convicted purely on suspicion and circumstantial evidence, there were glaring contradictions in the testimony of the complainant which ought to have given the applicant the benefit of doubt, the testimony of the doctor did not explicitly point to penetration and the evidence was given by a doctor other than the one who filled the P3 form. Counsel cited the case of Dominic Karanja v Republic (1986) KLR 612.

10. Counsel submitted that there are exceptional circumstances since the health of the applicant is at stake, the applicant is asthmatic and the mere fact that there are health facilities in the prisons department is not enough as the appellant’s health is likely to deteriorate further, the incarceration of the applicant in prison is likely to cause him mental anguish which is likely to affect the hearing of his Appeal, his continued imprisonment coupled with the likelihood of delay in hearing thereof will mean that the appellant will have served a substantial part of the sentence by the time the appeal is heard and determined, during trial the appellant fulfilled and complied with all conditions of bail without fail and he can be trusted to also fulfil the conditions of bail set by this court, he is a man of good character and a sole bread winner of his family, he shall not abscond Court, he will at all times co-operate, he has been absent from work and is likely to lose his job during the time of imprisonment and hearing of the Appeal, no evidence has been tendered by the prosecution to show that the Appellant is a flight risk. Counsel cited the cases of James Kibet Chirchir v Republic 160|2022| eKLR and Dominic Inziani v Republic and added that the Appellant has no previous record, he has undertaken to avail himself and not to interfere with witnesses and that he therefore meets the bail and bond guidelines.

Respondent’s Submissions 11. On her part, Prosecution Counsel Ms. Okok cited Section 357(1) of the Criminal Procedure Actand the case of Jivraj Shah v Republic (supra) and submitted that the appellant has not demonstrated any exceptional or unusual circumstances where the interests of justice would favour the grant of bail pending appeal, the fact that the appellant adhered to bond terms in the trial court is not a guarantee that he will attend court for the heating and determination of this appeal, the offence that the applicant has been convicted of is a serious one and the weight of the already pronounced sentence is so severe that it predisposes him to abscond, the appellant’s allegation that he is unable to purchase his medication while in prison is not an exceptional circumstance, the prison authorities are well able to deal with medical emergencies and even refer convicts to larger medical facilities if the situation so demands and that no medical report has been availed by the appellant to prove that he suffers from asthma and high blood pressure as he alleges.

12. On whether the appeal is likely to succeed, counsel submitted that the issues raised by the appellant are issues of fact and not weighty legal questions that would prima facie suggest an overwhelming chance of success, there is no substantial point of law that is likely to be argued, the fact that an appeal is arguable does not mean it will automatically be allowed, the prosecution proved its case beyond reasonable doubt as the evidence on identification was solid and the medical evidence also proved that there was penetration.

13. On whether substantial part of the sentence is likely to be served, Counsel submitted that the Appellant was sentenced to serve 20 years imprisonment on December 19, 2022 and has thus just started serving his sentence, appeals are being quickly admitted and dates are soon available, this appeal will be heard expeditiously and hence no danger of the appellant serving a substantial portion of the sentence.

Analysis and Determination 14. I have considered the application and the affidavit in support thereto, the grounds of opposition and the submissions filed by the parties. In my view, the issue that arises for determination is “whether the appellant has made out a case for his release on bond and/or bail pending the hearing and determination of this Appeal”.

15. I begin by quoting article 49(1)(h) Constitution which provides as follows:“An accused person has the right …(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.

16. Then Section 357(1) of the Criminal Procedure Code provides as follows:“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.”

17. 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.”

18. Further, in the case of Charles Owanga Aluoch v Director of Public Prosecutions [2015] eKLR it was held as follows:“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 JivRaji Shah vs. 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.”

19. In relation to the above, the Court of Appeal in the case of Dominic Karanja v Republic (1986) KLR 612 held as follows:“(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)…………..”

20. From the above guidelines, it is clear that a different test from that applied in bail pending trial is applied when dealing with applications for bail pending appeal. When considering the latter, the court has discretion which must be exercised judicially taking into consideration various factors set out in the above authorities. The court must also appreciate that the accused person has by then become a convicted person and more caution has to therefore be exercised before deciding whether or not to grant him/her bail.

21. What constitutes exceptional circumstances were dealt with in the case of R v Kanji [1946] 22 KLR, where De Lestang, Ag. J (as he then was) and held as follows:“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 one fourth 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 different position from him as regards bail, has been admitted to bail.”

22. The rationale for considering the chances of success of the appeal were set out in Somo v R [1972] EA 480 in which the court observed as follows:“There is little if any point in granting the application if the appeal is not thought to have an overwhelming chance of being successful, at least to the extent that the sentence will be interfered with so that the applicant will be granted his liberty by the Appeal court.I have used the word "overwhelming" deliberately for what I believe to be a good reason. It seems to me that when these applications are considered it must never be forgotten that the presumption is that when the applicant was convicted, he was properly convicted. That is why, where he is undergoing a custodial sentence, he must demonstrate, if he wishes to anticipate the result of his appeal and secure his liberty forthwith, that there are exceptional or unusual circumstances in the case. That is why, when he relies on the ground that his appeal will prove successful, he must show that there is an overwhelming probability that it will succeed."

23. In the present case, I have taken into consideration the fact that the Appellant has been convicted by the trial court and is serving a lawful sentence. I have also taken into account the grounds of appeal preferred. Whereas the appellant has set out various grounds that may be valid and may well succeed at the hearing of the appeal, there is nothing extraordinary in the grounds. The same are the usual grounds of facts normally raised in these kinds of cases. While the appeal may well succeed, the grounds cannot be said to amount to “overwhelming chances of success” within the meaning contemplated by that term.

24. As regards “exceptional circumstances”, I cannot find any. The fact that the applicant was admitted to bond by the trial court and did not breach bail conditions, is of good character or is the bread winner of his family, are not exceptional circumstances to warrant admission to bail pending appeal. Further, although the applicant has alleged that he suffers from asthma and high blood pressure and that the prison facility does not have the necessary medications due to costs, he has not presented any evidence whatsoever to support the allegations. I do not believe that the applicant, if indeed he is unwell, cannot, while in prison, access treatment from the government facilities available to all other prisoners.

Final orders 25. In conclusion, this court finds no merit in the application and the same is accordingly dismissed.

DELIVERED, DATED AND SIGNED AT ELDORET THIS 10TH DAY OF NOVEMBER 2023…………………WANANDA J. R. ANUROJUDGE