1.The three (3) Appellants/Applicants have lodged application dated 31st October 2023 (erroneously indicated 2021) seeking to be released on bond pending appeal under section 357(1) and section 124 Criminal Procedure Code Cap 75 of the Laws of Kenya and Articles 47,48,50 and 159 of the Constitution of Kenya.
2.The appeal has already been lodged to impugn the conviction and sentence in Criminal Case No. 51/2016 at Engineer Senior Principal Magistrate’s Court dated 13th November 2023.
3.They were convicted and jailed in:i.Count 1 Accused 1, 2 and 3 a fine of Kshs. 700,000 each or imprisonment for four (4) years.ii.For Counts 2, 3, 4, and 51st and 2nd accused to pay a fine of Ksh. 300,000.They faced the following charges;“Count 1The 1st, 2nd, and 3rd accused are charged with the offense of conspiracy to commit a felony contrary to Section 393 of the Penal Code. The particulars are that on diverse dates between 5th March 2015 and 23rd July 2015 at Kinangop Sub–County within Nyandarua County, jointly conspired to commit a felony namely theft and stole Kshs 1,785,500/=belonging to Muki SACCO.Count 2The 1st and 2nd, accused are charged with the offense of making a false document without authority contrary to Section 357 (a) of the Penal Code. The particulars are that on unknown dates date and unknown place within the Republic of Kenya, jointly, with intent to defraud and without lawful authority, made a Co-operative Bank Cheque Number 000007 of Kshs 423,000/= purporting it to have been drawn by Twins World Insurance Agencies.Count 3The 1st and the 2 nd accused are charged with the offense of making a false document without authority contrary to Section 357 (a) of the Penal Code. The particulars are that on unknown dates date and unknown place within the Republic of Kenya, jointly, with intent to defraud and without lawful authority, made a Co-operative Bank Cheque Number 000038 of Kshs 468,500/= purporting it to have been drawn by Twins World Insurance Agencies.Count 4The 1st and the 2nd accused are charged with the offense of making a false document without authority contrary to Section 357 (a) of the Penal Code. The particulars are that on unknown dates date and unknown place within the Republic of Kenya, jointly, with intent to defraud and without lawful authority, made a Co-operative Bank Cheque Number 000035 of Kshs 473,000/= purporting it to have been drawn by Twins World Insurance Agencies.Count 5The 1st and the 2nd accused are charged with the offense of making a false document without authority contrary to Section 357 (a) of the Penal Code. The particulars are that on unknown dates date and unknown place within the Republic of Kenya, jointly, with intent to defraud and without lawful authority, made a Co-operative Bank Cheque Number 000031 of Kshs 421,000/= purporting it to have been drawn by Twins World Insurance Agencies.Count 6The 1st accused is charged with the offense of stealing contrary toSection 268 (1) as read with Section 275 of the Penal Code. The particulars are that on unknown dates date and unknown place within the Republic of Kenya, jointly, with another not before the court, stole cheque leaf number 000007, 000038, 000035, and 000031 belonging to Twins World Insurance Agencies.After hearing both prosecution witnesses and the defence, the court arrived at a Conclusion;Count 1I find the prosecution proved its case to the required standards, I find the 1st, 2nd, and 3rd accused guilty of the conspiracy to commit an offense contrary to Section 393 of the Penal Code, and accordingly, I convict them under Section 215 of the CPC.Count 2, 3, 4, and 5I find the 1st and the 2nd accused guilty as charged in Counts 2, 3, 4, and 5 and accordingly convict them under Section 215 of the CPC.I find the prosecution has not availed enough evidence to show the cheques were stolen because there is sufficient evidence to show they belonged to a business to which the 1st accused was party. A dubious enterprise that was used as a front to acquire cheques that were used to steal money from the Sacco. The 1st accused is acquitted of the charges in Count 6 under Section 215 CPC.Orders accordingly’’
4.I have duly considered the application, affidavit in support, and the entire record. It is trite law that, a convicted person who has appealed has the right to seek bail pending appeal, but, the court has the discretion to order release or decline. (See section 257 of the Criminal Procedure Code (CPC). This means that in as much as the offender has the right to appeal as provided by article 50(2) (q) of the Constitution, bail pending appeal is not a constitutional right since the offender has been found guilty, convicted and sentenced, therefore, the presumption of innocence no longer exists.
5.Legal principles that govern bail pending appeal are settled and have been stated in various cases from the appellate court. Mostly, granting bail pending appeal would be primarily geared to preventing punishment of an innocent person, just in case the trial court misdirected itself, but, at the same time, it must be for the purpose of administering justice. In the case of Jivraj Shah (supra), the principles were enumerated as: -“(1)(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. If it appears prima facie 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.”In the case of Dominic Karanja v Republic (1986) KLR 612, the Court of Appeal stated that:“The most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty.”
6.The applicants herein being convicts are serving lawful sentences, therefore, do not benefit from the presumption of innocence and inherent right to bail pending trial. This fact was well captured in the case of Mutua v R [1988] KLR 497, where the Court of Appeal stated that:“It must be remembered that an applicant for bail has been convicted by a properly constituted court and is undergoing punishment because of that conviction which stands until it is set aside on appeal.”
7.It is therefore upon the applicant to demonstrate existence of circumstances that result into the appeal being successful that call for the court’s intervention so as not to be rendered nugatory. This fact has been captured in the Bail & Bond Policy Guidelines where it is provided that:“…. the burden is on the convicted person to demonstrate that there is an overwhelming chance of success.”
8.The mere question of the applicant believing that the appeal has a high chance of success, should not be a ground to allow the application. In the case of Charles Ratemo Matumo v Republic[2021]eKLR,Odunga GVJ (As he then was) held that:“The mere fact that the applicant believes that his appeal has chances of success does not necessarily amount to exceptional circumstances since appellants are only expected to lodge appeal where they believed that their appeals have chances of success. It requires more than such belief to satisfy the court that there are exceptional circumstances.”
9.Looking at the entire application, the applicants the trial court made findings;“that the evidence of Pw6 that the 2nd accused before his arrest, had collected an unsealed envelope containing cheques that he gave to the 2nd accused.What are the odds that Pw6 delivered an envelope with cheques and some were presented to Pw7 for depositing and Pw6 and Pw8 made withdrawals they had never deposited and gave either the 1st accused or the 2nd accused? That there was a proof that the 1st accused was the provider of the cheques and he was using Twins World where he was one ghost partner and Metric Chemicals which belonged to his sister and brother–in–law. These cheques would go to the 2nd accused who is a bank teller in the Murungaru Branch. Using his position, he would fill out the deposit slip and bank the cheque either himself or through Pw7 as noted above. That the Pw7 and Pw3, would ensure the protocol of depositing the cheque was captured and they would be forwarded to the head office where the 3rd accused would pick up his role of clearing the cheques and ensuring the money is credited in the accounts yet the cheques had not been deposited in the Banks for clearance.Since the 3rd accused and the 1st accused worked in the head office,the prosecution established the clearance would be brought to the attention of the 1st accused who would telephone his friends and direct them to withdraw and hand it over either to himself or the 2nd accused.That there was enough evidence showing the cheques emanated from Twins World which is linked to the 1st accused. There was evidence showing the cheques were given to the 2nd accused who deposited them.There is evidence to show the 3rd accused cleared these cheques from the system and ensured the money was deposited in the accounts and withdrawn thereafter.With the above, online activities tend to leave a digital footprint or digital shadow. These are a person’s unique set of digital activities, actions, and contributions, and in this case, the 1st accused unknowingly left a print when they registered Twins World. He left his phone on the Statement of particulars. The 2nd accused filled the deposit vouchers and Pw9 linked his handwriting to them. The 3rd accused cleared the cheques in a system that captured the Users and their activities. There is no doubt the 1st accused was present when Twins World was registered. That Pw6 collected an envelope with cheques from a particular shop and gave the 2nd accused. This is a complex issue and much of the information is in the personal domain of the 1st accused”
10.In meting out sentence, the trial court considered the fact of the applicants and opted to impose fines of ksh 700,000 and in default 4 years imprisonment and ksh300,000 and in default two years imprisonment respectively in the two sets of counts.
11.In the case of Ademba v Republic (1983) KLR, 442 the Court of Appeal held that:“Bail pending appeal may only be granted if there are exceptional or unusual circumstances… The likelihood of success in the appeal is a factor to be taken into consideration in granting bail pending appeal. Even though the appellant showed serious family and personal difficulties, in view of the unlikelihood of success in this appeal, the application could not succeed.”
12.Further, the fact that the applicants were of good behaviour and did not abscond trial during the trial is not a reason to grant bail.In the case of Dominic Karanja v Republic [1986] KLR 612 the Court of Appeal held that:“…The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicants and the hardship, if any, facing the wife and children of the applicants are not exceptional or unusual factors: see Somo v Republic [1972] EA 476.”
13.The applicants urge that they may serve a substantial amount of their sentences before judgement;
14.The lower court file having been availed, it is a matter of administrative function of admission of appeal being undertaken and a date being set for hearing.
15.Though conceded by the prosecution without any explanation, the court is not convinced that the application meets threshold of being meritorious.
16.The upshot is that the application is bereft of merit, and, is accordingly dismissed. Let the applicant expedite filing of the record of appeal to pave way for hearing of the appeal.
