1.Simon Muia Katuu (the Applicant) was tried for the offence of robbery with violence in the Magistrate's Court at Loitoktok in Criminal Case No. 62 of 2020. He was found guilty of that offence. He was sentenced to serve life imprisonment. He intends to file an appeal and has come to this court seeking to be released on bail pending hearing and determination of the intended appeal.
2.He has filed a Notice of Motion dated 10th January 2021 anchored on various provisions of the law as shown on the face of that application. He has advanced grounds in support of the application that he is not a flight risk; that he has a fixed abode at Katangi Location within Machakos County where he permanently resides with his family; that he is the breadwinner of his family; that he has a meritorious case with high chances of success; that he has a constitutional right to bail and that he undertakes to abide by any conditions that this court will impose.
3.This application was canvassed on 23rd March 2022 through oral submissions. Mr. Mutunga, learned counsel representing the Applicant, submitted that the principles for release on bail pending appeal have been established and these are that the appellant must show existence of exceptional circumstances; the appellant must show, prima facie, that the appeal is likely to succeed and that substantial part of the sentence has been served.
4.Mr. Mutunga submitted that the charge was defective in that it charged the applicant with robbery with violence under section 295 as read with section 296(2) of the Penal Code which is defective because section 295 of the Penal Code provides for the offence of robbery while section 296(2) of the Penal Code is for the offence of robbery with violence. He submitted that there is duplicity and this made it difficult for the applicant to defend himself.
5.Mr. Mutunga submitted further that the appeal is likely to be successful; that there was a problem with the identification process. He urged that this court grants the applicant bond pending the appeal.
6.Mr. Mang’are for the prosecution opposed this application. He submitted that the appeal has no chances of success; that the charge was proved and it is clear which charge the applicant was facing; that the issue of duplicity was not raised in the lower court; that the identification parade was properly carried out and that the applicant did not raise any issue with the identification parade.
7.Mr. Mang’are further argued that the applicant was not on bond in the lower court and only raised issue of bond towards the conclusion of his case and that he is likely to abscond if released on bond.
8.The applicable law on bail pending appeal is Section 357 (1) of the Criminal Procedure Code. This section provides that:
9.The applicable principles for grant of bail pending an appeal are stated in the case of Jivraj Shah v. Republic  KLR 605. The Applicant’s counsel cited this case in support of his submissions. The court in that case stated as follows:
10.The applicant through his counsel submitted that the threshold in the above decision has been attained while Mr. Mang’are for the Respondent argued to the contrary. The applicant’s right to bail pending hearing of his case/appeal is backed by the law under Article 49 (1) (h) of the Constitution. But this right is not absolute. Where compelling reasons exist, bail can be denied. A distinction must be made between an accused person whose trial is yet to conclude and an appellant who has been tried and found guilty. The latter does not enjoy the presumption of innocence available for an accused person whose case is yet to be determined.
11.The above distinction was discussed by the court in Chimambhai v Republic 1971 EA 343, where the court made an observation that:
12.The Court of Appeal in Dominic Karanja v Republic (1986) KLR 612, stated, inter alia, that:(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;
13.I have read the proceedings of the lower court, the Petition of Appeal and the reasoning of the magistrate in her judgment. The appeal is yet to be argued before me to determine if it has high chances of success. My reading and understanding of the submissions made before me reveals no exceptional circumstances in this case and as stated in the Dominic Karanja case above, being a breadwinner for the family is not an exceptional circumstance nor is the assertion that the applicant will not abscond if released on bond.
14.I hold the view that this application cannot succeed for the reason that the applicant has not presented before me any evidence of exceptional circumstances or any other reason why he should be released on bond pending his appeal. Consequently the Notice of Motion dated 10th January 2021 is hereby dismissed.