RULING OF THE COURT
[1] This is an application by Emmanuel Ochieng’ Awuondo for bail pending appeal.
[2] The application is supported by the affidavit of the applicant who states, amongst other things, that, he was convicted by the Senior Resident Magistrate on 7th October, 2015 for the offence of trafficking in Narcotic and Psychotropic substances; that he appealed to the High Court but his appeal was dismissed; that he has filed Criminal Appeal No. 156 of 2016 in this Court which is pending for hearing; that he is suffering from acute leukemia and diabetes, and that his appeal has high chances of success.
[3] Mr. Mule, the respondent’s counsel opposed the application and submitted that the applicant has not demonstrated that his appeal is likely to succeed and that the applicant has not attached medical documents to his affidavit.
[4] The application was filed in Criminal Appeal No. 156 of 2016 where the applicant herein is the 1st appellant and one Isaac Ndira Osore the 2nd appellant.
The said Isaac Ndira Osore was present at the hearing of the application. Although he has not made any application for bail pending appeal, he asked the Court to make him a party to the application.
[5] Rule 5 (2) (a) of the Court of Appeal Rules (the Rules) confers power to the Court to release an appellant on bail pending the determination of an appeal.
However, there is no provision in the Criminal Procedure Code expressly giving the Court of Appeal power to release an appellant on second appeal on bail pending appeal.
Section 379 (4) of the Criminal Procedure Code which allows this Court to grant bail save where a sentence of death has been imposed does not apply because it relates to the first appeals to this Court.
As Section 361 (1) of CPC provides, a second appeal to this Court lies on a matter of law. Nevertheless, Section 361 (6) provides:
“Where an appeal under this section is pending, a judge of the High Court may grant bail to a convicted person who is a party to the appeal.”
That section does not mention the Court of Appeal.
[6] The foregoing notwithstanding, there is ample authority, for instance Dominc Karanja v. Republic [1986] KLR 612 and Kibera v. Republic [1990 – 1994] EA 220 that the Court has power donated by Rule 5 (2) (a) of the Rules to release a second appellant on bail pending appeal.
In Kibera v. Republic (supra), this Court held:
“The appellate court may grant bail pending a second appeal if it is satisfied that there is a substantial point of law to be argued which could result in the conviction being quashed.”
[7] We have studied the record of appeal in Criminal Appeal No. 156 of 2016 and the grounds of appeal in the memorandum of appeal.
The prosecution’s case, in a nutshell, was that the applicant was one of the two people who were transporting 339 kilograms of cannabis sativa in a motor vehicle in which the drugs were recovered. The applicant’s case and that of the co-accused were that they were not inside the motor vehicle in which the drugs were recovered. The two courts below made a finding that the applicant and co-accused were occupants in the motor vehicle.
In the circumstances, the applicant has not satisfied the threshold for admission to bail pending the determination of the appeal.
[8] In the premises, the application is dismissed. We so order.
DATED and Delivered at Kisumu this 25th day of October, 2018.
E. M. GITHINJI
JUDGE OF APPEAL
HANNAH OKWENGU
JUDGE OF APPEAL
J. MOHAMMED
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR