Granting bail entails the striking of a balance of proportionality in considering the rights of the applicant, and the public interest on the other. On the one hand it is the duty of the court to ensure that crime where it is proved, is appropriately punished, this is for the protection of society; on the other hand it is equally the duty of the court to uphold the rights of persons charged with criminal offences, particularly the human rights guaranteed under the constitution. This position was expressed by the court of appeal in Gerald Macharia Githuka vs Republic.
The cornerstone of the justice system is that no one will be punished without the benefit of due process including the right to exhaust the right to appeal. Incarceration before trial or pending hearing of an appeal cuts against this principle. The need for bail is to assure that the accused person will appear for trial and not to corrupt the legal process by absconding. Anything more is excessive and punitive.
Bail pending appeal is provided for in Section 357 of the Criminal Procedure Code Cap. The principles for granting bond pending appeal are well set out in the case of Jivraj Shah v Republic; an application for bail pending appeal in an intended appeal from a judgment of the High Court at Nairobi before justices Amin & Aluoch JJ.
These principles are as follows:
- The existence of exceptional or unusual circumstances upon which a court of appeal can fairly conclude that it is in the interest of justice to grant bail.
- 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.
- Whether there is a likelihood of the Appellant having served a substantial part of the sentence by the time of Appeal is heard and determined.
The Bail and Bond Policy Guidelines, 2015 provides that the burden is on the convicted person to demonstrate that there is an overwhelming chance of success.
The Supreme Court of Uganda in the case of Arvind Patel vs Uganda set out the consideration which should generally apply in applications for bail pending hearing of an appeal as follows:-
- The character of the applicant.
- Whether he/she is a first offender.
- Whether the offence of which the applicant was convicted involved personal violence.
- The appeal is not frivolous and has reasonable possibility of success.
- The possibility of substantial delay in the determination of the appeal.
- Whether the applicant has complied with bail conditions granted after the applicant’s conviction and during the pendency of the appeal (if any)
The Court of Appeal of Uganda in the case of Igamu Joanita vs Uganda cited with approval the above case and numerous other authorities and reiterated the above conditions and added that the said conditions are guidelines and are not exhaustive or mandatory and that they need not all be present. A combination or two or more of the said conditions will suffice. The court further added that the main purpose of granting bail especially bail pending appeal is that while the applicant is set free pending trial or appeal, the court must be satisfied that the applicant shall in compliance with the bail conditions be available to attend trial or appeal. The court must therefore be satisfied that the applicant will not abscond.
The supreme court of India in the case of Krishnan vs The People stated the conditions to be satisfied in an application for bail pending hearing of an appeal as follows:-
- Bail is granted at the discretion of the court.
- The court must be satisfied that there are exceptional circumstances that are disclosed in the application.
- The fact that the appellant due to delay in determining the appeal may, have served a substantial part of his sentence by the time his appeal is heard, is one such exceptional circumstance. Each case is considered on its merits, depending on what may be presented as exceptional circumstances.
- It is important to bear in mind that in an application for bail pending appeal, the Court is dealing with a convict, and sufficient reasons must therefore exist before such a convict can be released on bail pending appeal.
- It is not for the court to delve into the merits of each ground. But it suffices that all the grounds are examined, and a conclusion is made that prima facie the prospects of success of the appeal are dim.
- The fact that the applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant to admit an application to bail; pending appeal.
EXCEPTIONAL OR UNUSUAL CIRCUMSTANCES
The existence of exceptional or unusual circumstances upon which a court of appeal can fairly conclude that it is in the interest of justice to grant bail is one of the key principles that the court considers prior to granting bail or bond pending appeal.
In Peter Hinga Ngotho v Republic it was held that the fact that the Applicant did not breach the bail conditions in the court below, is not an exceptional circumstance which can warrant a decision to admit an Applicant to bail pending appeal.
In Dominic Karanja v Republic (1986) KLR 612, the Court of Appeal stated in alia that 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; 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.
In the words of Harris J in the case of Chimambhai vs Republic, the learned Judge rendered himself as follows:- As to the measure of that recognition the decision in Kanjis case is directly on the point. There, two persons had been convicted of assault causing actual bodily harm and sentenced to terms of imprisonment. Each appealed against both conviction and sentence and applied to the magistrate for bail pending the hearing of the appeal. The magistrate granted bail to one of the appellants but not the other, where upon the latter applied to the court by way of appeal from such refusal. Although in his judgement the judge said it was not the practice to grant bail to an appellant after he had been convicted and sentenced to imprisonment except in very exceptional circumstances, he went on; nevertheless, to illustrate what he considered would be circumstances justifying the granting of bail to such an applicant. The mere fact of anticipated delay in hearing an appeal, he said, was not of itself exceptional circumstance but might become one when coupled with other factors, and added that the good character of the appellant together with such an anticipated delay might constitute an exceptional circumstance”.
ii. 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.
In a passage from the judgment of Trevelyan J (as he then was) in the case of Somo versus Republic (1972) EA 476 is useful on this point. The learned judge said at page 480 of his judgment that;
“But generally speaking, whatever grounds may properly be taken into account in favour of the grant of the application…the most important of them is that the appeal will succeed. There is little, if any, point granting the application if the appeal is not thought to have an overwhelming chance of being successful…I have used the word “overwhelming” deliberately and for what I believe to be good reason. It seems 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.”
In Dominic Karanja v Republic, the Court of Appeal stated the most important issue in an appeal was whether 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.
In Charles Karuga Wahome v Republicthe applicant contented that his appeal had an overwhelming chance of success. Mr. Muthoni who appeared submitted that the applicant’s conviction was based on an identification which was not free from error as the circumstances were not favourable for a positive identification. Mr. Muthoni convinced the learned Principal State Counsel Mr. Orinda that the appeal had a high chance of success as the identification was questionable.
In Edward Aliau Kivuyo v Republic bail pending appeal was granted on the ground that the Applicant’s appeal was likely to succeed.
Justice D. Musinga in Imran Mallu v Republic granted an application for bail pending hearing on the ground that the appeal had overwhelming chances of success after the appellant’s advocate urged the court to take cognizance of the fact that the charge as framed before the trial court was defective and did not disclose any offence. He further submitted that the plea was not taken in the proper manner as was laid down by the Court of Appeal in Adan vs R .He further submitted that the facts of the case as read out to the trial court could not sustain a conviction. He urged the court to find that the appellant had a meritorious appeal with overwhelming chances of success. Mr. Gumo, Assistant Deputy Public Prosecutor, did not oppose the appellant’s application.
In Henry Mbengo Rioba v Republic the applicant appealed against the conviction and sentence and filed an application for bail pending appeal on the ground that his appeal has overwhelming chances of success. Mr. Gumo, Assistant Deputy Public Prosecutor conceded that the plea was unequivocal and said that a conviction was not recorded after the facts were read to the applicant. He did not oppose the application for bail pending appeal but indicated that the state would apply for a retrial. Justice D. Musinga in granting the application reiterated as follows, “I have considered the application and I agree there were some flaws in the taking of the plea which may cause the appeal to be successful. The appeal may be said to be having overwhelming chances of success and in the circumstances I order that the applicant be admitted to bail pending appeal on his own bond of Kshs.5000/- with one surety of a similar amount.”
The court in James Nyamosi v Republic held that when a person is awaiting trial he is presumed to be innocent and is therefore entitled to bail. Following conviction and sentence, he is not entitled to bail. It is presumed that he has been properly convicted and sentenced Mundia v Republic. This is why such a person can only be released on bail if he can show that the appeal he has preferred has overwhelming chances of success and that the circumstances presented in his application are exceptional and unusual Somo v Republic
The Eligibility To Be Admitted To Bail Pending The Hearing Of An Appeal vs The Right To Bail Pending Trial
The eligibility to be admitted to bail pending the hearing of an appeal must be distinguished from the right to bail pending trial. The right to bail at the trial phase is guaranteed unless the prosecution demonstrates that there are compelling reasons for not granting bail.
Whereas the burden is on the prosecution to persuade the court that an accused person should not be admitted to bail pending trial the situation is different once an accused has been convicted and attained. As an appellant the burden is upon him to persuade the court that considering the probability of success of his appeal, he should be admitted to bail pending appeal.
Article 49 of the Constitution of Kenya an accused person who is facing a criminal charge has a right to bond because he is presumed to be innocent till proved guilty, unlike a case where one is already convicted.
J. Harris in Chimambhai v Republic made another observation in such an application when he said; “The case of an appellant under sentence of imprisonment seeking bond lacks one of the strongest elements normally available to an accused person seeking bail before trial, namely, the presumption of innocence, but nevertheless the law of today frankly recognizes, to an extent at one time unknown, the possibility of the conviction being erroneous or the punishment excessive, a recognition which is implicit in the legislation creating the right of appeal in criminal cases……..”
REFERENCES
Criminal Appeal 119 of 2004 Gerald Macharia Githuku V Republic [2007] eKLR
Section 357 of the Criminal Procedure Code Cap, 75 Laws of Kenya
Criminal Application Nairobi 18 of 1986, Jivraj Shah v Republic[1986] eKLR
Bail and Bond Policy Guidelines, 2015
Arvind Patel v Uganda (Criminal Application-2003/1) [2003] UGSC 25 (17 June 2003); Supreme Court of Uganda
Criminal Appeal 2 of 2015 Peter Hinga Ngatho v Republic [2015] eKLR
Criminal Miscellaneous Application 234 of 2005 Charles Karuga Wahome v Republic [2006] eKLR
Miscellaneous Criminal Application 617 of 2006 Edward Aliau Kivuyo v Republic [2007] eKLR
Criminal Appeal 195 of 2006 Imran Mallu v Republic [2006] eKLR
Adan Vs R [1973] Ea Pg 445
Miscellaneous Criminal Application 135 of 2004 Henry Mbengo Rioba v Republic [2004] eKLR.
Criminal Appeal 51 of 2009 James Nyamosi v Republic [2009] eKLR
Criminal Application 532 of 1986 Mundia v Republic [1986] KLR 623
Somo v Republic [1972] EA 476
Criminal Application Nai 14 of 1986 Dominic Karanja v Republic (1986) KLR 612
Chimambhai V. Republic (No.2) [1971] Ea 343.
