1.The application dated June 16, 2023brought undersection 357 of the Criminal Procedure Code seeks for orders for release of the applicant on bail pending the hearing and determination of the appeal. The appeal arises from the judgement in the Chief Magistrate Criminal case No. 1649 of 2019 whereas the applicant was charged with the offence of arson contrary to section 332 (a) of the Penal Code. He was convicted and sentenced to a fine of Kshs Three Million (3,000,000/-) or in default serve seven (7) years imprisonment on June 8, 2023.
2.The applicant in the supporting affidavit deposes that he has filed an appeal against conviction and sentence and that the appeal has very high chances of success and that he was convicted on suspicion and on circumstantial evidence. It is further argued that his petition of appeal raises substantial points of law to be argued in pursuit of the said appeal. The appellant further states that he was admitted on bail terms during the trial and he attended court diligently. The applicant urges the court to grant him the same bail terms as he was given in the trial court. The appellant states that he suffers from diabetes and that he is at risk of the disease deteriorating if he remains in custody for a longer period. It is further argued that if the applicant is not released on bond, he is likely to serve the full sentence before the appeal is heard and determined.
3.The respondent filed a replying affidavitdated July 5, 2023 to the effect that the intended appeal has no chances of success due to the overwhelming evidence against the appellant. The respondent further states that no injustice shall be visited to the applicant because he is serving a sentence which has been meted on him by the trial court after being properly convicted. Moreover, the respondent states that following the conviction, the presumption of innocence of the applicant is no longer applicable and as such he cannot be treated as if he is being tried for the offence. Furthermore, the respondent argues that the fact that the applicant complied with the bail terms granted by the trial court is not a guarantee that he will comply with the bond terms granted to him after he has been convicted and that if anything, the risk of him absconding is higher because he has already been convicted.
4.The respondent states that although the applicant alleges that he suffers from diabetes, no medical records have been attached to support the said allegation and that in any event, that there exists medical facilities in prison for use by the prisoners, and as such, ill health does not merit grant of bond pending appeal.