REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KERICHO

CRIMINAL MISC. APPL. NO. 5 OF 2016

RICHARD CHERUYOIT ROTICH..................................APPLICANT

VS

REPUBLIC.......................................................................RESPONDENT

RULING

1. By his undated application, the applicant prays to be released on bail pending appeal to the Court of Appeal.  In the said application, he seeks the following orders:

1. That the appellant/applicant be released on bail with without sureties pending the determination of the appeals in the Court of Appeal against the conviction and sentence.

2. That there be stay of the sentence passed against the appellant herein.

2. The application is based on the following grounds:

a) The said sentence is inordinately excessive.

b) The appeal have high chances of success and is further supported by affidavit.

3. The application is supported by an affidavit sworn by the applicant on 10^th February 2016. The applicant avers that he is a suspect and ought to be given bail or bond. He also asserts that he is entitled to protection of his fundamental rights under the Constitution.

4. In his submissions, the applicant stated that he was convicted by the Magistrate’s Court in 2007 and appealed to the High Court sitting in Kericho. His appeal was dismissed and his sentence upheld.  He contends that the Constitution of Kenya 2010 allows every citizen the right to bail, and he urged the court to allow his application.

5. In response, Ms. Keli for the state opposed the application. She noted that from the record, the accused was sentenced to death in Criminal Case No.1079 of 2007 by the Principal Magistrate, Kericho. He filed an appeal to the High Court, being Criminal Appeal No. 57 of 2007. The appeal was dismissed on 30^th May 2010 and the sentence of death confirmed by the High Court. The state therefore submitted that in accordance with section 379(4) of the Criminal Procedure Code, this court lacks the jurisdiction, to entertain the application. Ms. Keli submitted that under this section, bail is allowed in all cases save where an applicant has been sentenced to death.

6. I have considered the application before me and the documents on the court file relating to this matter. As submitted by Ms. Keli for the state, the applicant was charged, tried and convicted, and was sentenced to death. He appealed to the High Court and his appeal was heard and dismissed.  He has now appealed to the Court of Appeal.

7. I note that the applicant was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code before the Chief Magistrate’s Court in Kericho. He was tried and convicted of the offence, and sentenced to death, the sentence prescribed by law for the offence.

8. Section 379(4) of the Criminal Procedure Code provides as follows:

(4) Save in a case where the appellant has been sentenced to death, a judge of the High Court, or of the Court of Appeal, may, where an appeal to the Court of Appeal has been lodged under this section, grant bail pending the hearing and determination of the appeal. (Emphasis added)

9. The applicant argues that he is a suspect and the Constitution of Kenya 2010 allows every citizen the right to bail. However, while it is true that there is a constitutional right to bail, such right is limited to arrested persons, and does not extend to persons who are already convicted. Article 49 provides as follows:

49. (1)   An arrested 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.”

10. As the applicant was arrested, tried and convicted, he is not a suspect and is therefore not in the category of persons to whom Article 49 applies. As he was charged with a capital offence and was sentenced to death, he falls within the exception set out under section 379 (4) of the Criminal Procedure Code. This court therefore has no jurisdiction to grant the orders that the applicant is seeking.  Accordingly, the application is hereby dismissed.

Dated Delivered and Signed at Kericho this 8^th day of November 2017.

MUMBI NGUGI

JUDGE