[2010] KEHC 1841 (KLR)
The court held that the appellant failed to demonstrate overwhelming chances of success in his appeal, which is the primary consideration for granting bail pending appeal. The court further found that the appellant's medical condition, specifically asthma and bronchitis, did not amount to exceptional or unusual...
Source-derived case information.
- Citation
- [2010] KEHC 1841 (KLR)
- Parties
- Appellant: Aaron Mwenda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 4 of 2010
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application for bail pending appeal dismissed
- Legal Topics
- Bail Pending Appeal, Assault Causing Actual Bodily Harm, Sentencing, Medical Grounds for Bail
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Aaron Mwenda
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal.
- 2 Whether the appellant's medical condition constitutes exceptional or unusual circumstances justifying bail pending appeal.
- 3 Whether the appeal has overwhelming chances of success.
Ratio Decidendi
The court held that the appellant failed to demonstrate overwhelming chances of success in his appeal, which is the primary consideration for granting bail pending appeal. The court further found that the appellant's medical condition, specifically asthma and bronchitis, did not amount to exceptional or unusual circumstances warranting bail, as he was already receiving treatment while in custody and could continue to do so. The absence of objection by the state did not alter the legal threshold required. Consequently, the application for bail pending appeal was dismissed.
Court Disposition
application for bail pending appeal dismissed
Orders
- The Notice of Motion dated 2nd February 2010 is dismissed.
- Bail pending appeal is declined.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU Criminal Appeal 4 of 2010
AARON MWENDA ......................................... APPELLANT
VERSUS
REPUBLIC ................................................. RESPONDENT
RULING
The appellant has preferred this appeal against the decision of Senior Resident Magistrate Maua in Criminal Case No. 18 of 2010. The appellant in that case pleaded guilty to the offence of assault causing actual body harm contrary to section 251 of the Penal Code.The court sentenced him to serve a 2 years imprisonment.His appeal therefore can only be relation to the sentence.He has in the meanwhile filed a Notice of Motion dated 2nd February 2010 seeking bail pending appeal.In his affidavit in support, he deponed that when the offence occurred he had been requested to take the complainant to join his fellow youths who had been circumcised together.When they went, the complainant was injured in circumstances that were not clear.He therefore said that he was a victim of circumstances.He stated that he suffers from asthma and bronchitis and to that end annexed documents to prove his ailment.Those documents shows that the appellant was treated at Ministry of Health Laare Heath Center on 29th January 2010. He was indeed diagnosed to suffer broncho asthma.The appellant in the end in his affidavit in support stated that his appeal has high chances of success.The application was not objected to by the state.The case of Somo Vs. Republic [1972] E.A. 476. It was stated that an appellant wishing to obtain bail pending appeal ought to show that his appeal has overwhelming chances of success.In the case of Kaguma Vs. Republic [2004] 1 EA the court held:-
“For the applicant to obtain bail pending appeal, he had to demonstrate overwhelming chances of success.Minor relevant considerations would be whether there were exceptional or unusual circumstances. Previousgood character of the applicant, hardship facing the wife and children, mere ill health, or even a solemnassertion that the applicant would not abscond were notexceptional circumstances.”
It is not the basis to grant bail pending appeal that the applicant suffers from an ailment.It is clear from the documents annexed to the application that the appellant was treated whilst he was in custody at Ministry of Health Centre. The same health center can treat him if he needs such treatment. Bearing that in mind, and having perused the lower court record, I decline to grant the applicant bail pending appeal.The Notice of Motion dated 2nd February 2010 is dismissed.
Dated and delivered at Meru this 18th day of June 2010.
MARY KASANGO
JUDGE