The ruling was delivered by Presiding Judge Diana Kavedza, who certified the application as urgent after the two appellants had moved the court through a Chamber Summons dated August 29, 2024, seeking to be heard after the conviction.
The Anti-Corruption Court sitting in Milimani on Thursday, August 29 found the former county boss and 10 others guilty of various counts, including abuse of office, conflict of interest, and unlawful acquisition of public property, and fined him Ksh85 million, failure to which he would serve eight years in jail.
The others found guilty included his former proxy, Ndathi, whose fine was fixed at Ksh83 million or an eight-year jail term in default. The other convicts, who were officials at the county, received lighter penalties, with each ordered to pay Ksh700,000 in fines or serve four-year jail terms in default.
Lawyers in court on August 29, 2024. /ODPP
They included the former county secretary, six chief officers of Finance, Environment, Agriculture, Transport, Land, and Gender, a deputy director of Education, and the Head of Supply Chain Management.
The sentences were delivered by Chief Magistrate Thomas Nzioki. On Friday, Judge Kavedza qualified the application for bail as reasonable, saying “The applicants do not pose any risk to society or themselves since the offences in question did not involve personal violence.”
They moved to court requesting to be released on bail, arguing that their appeal had overwhelming chances of success. In their application, supported by an affidavit sworn by their counsel, Isaac Rene, the appellants raised nine grounds of appeal.
Among the key arguments presented was the assertion that the trial magistrate erred in law and fact by failing to acknowledge that the County Government of Samburu received value for its money in the procurement of goods and that the appellants had declared their interest in the involved company, Oryx Service Station, as required by law.
The appellants also cited health concerns, with Lenolkulal claiming that his hypertension could worsen if confined to jail, and Ndathi stating that his Type 2 diabetes, complicated by peripheral neuropathy, would pose grave danger to his life if detained.
The judge, while noting that the application had not yet been served to the State, emphasized that the right to bail post-conviction is discretionary and dependent on the merits of the case.
The judge found that the appeal raised significant and arguable questions of both law and fact, which could potentially overturn the trial court’s findings.
Regarding the appellants’ health conditions, the judge dismissed these as grounds for bail, citing precedent that medical issues can be managed within prison facilities.
However, the judge noted that the offences in question did not involve personal violence, and therefore, the appellants did not pose a risk to society.
Consequently, the court granted bail to both Lenolkulal and Ndathi, setting the bond at Ksh10 million each, with one surety of a similar amount.
“In exercising my discretion… the 1st and 2nd applicants are each admitted to a bond of Sh10,000,000 with one surety of a similar amount,” she said, adding “I do not wish to comment on the legality of the sentence at this stage as it will prejudice the outcome of the main appeal. I leave the arguments of that ground for the main appeal.”
The judge however directed that Lenolkulal and Ndathi deposit in court their passports and or all travelling documents before being released, and further directed that the application and petition of appeal be served upon the respondent (the State) within seven days and the respondent to file responses within 14 days.
“This matter is fixed for mention on October 31, 2024, before the Presiding Judge, Milimani Anti-Corruption and Economic Crimes Division, and for further directions,” Justice Kavedza directed.
Former Samburu Governor Moses Lenolkulal during a past court session. /NTV