[2013] KEHC 693 (KLR)
The court found that there were no new or novel factors presented since the previous denial of bond pending appeal by Meoli J. The court was not persuaded that the appeal had overwhelming chances of success. The concerns raised in the pre-bond report remained unaddressed. Given that the appeal had already been filed...
Source-derived case information.
- Citation
- [2013] KEHC 693 (KLR)
- Parties
- Appellant: Abdalla Kirao Mkare Wanje; Appellant: Ali Kirao Wanje; Appellant: Emmanuel Mlewa Mkare; Appellant: Siria Ngumbao Charo; Appellant: Lilian Kazungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 21 of 2013
- Procedural Posture
- Criminal Appeal / Ruling on Second Application for Bond Pending Appeal
- Outcome
- application for bond pending appeal rejected
- Judges
- GO Shikwe
- Legal Topics
- Bond Pending Appeal, Enhancement of Sentence, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdalla Kirao Mkare Wanje
Appellant
Ali Kirao Wanje
Appellant
Emmanuel Mlewa Mkare
Appellant
Siria Ngumbao Charo
Appellant
Lilian Kazungu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Second Application for Bond Pending Appeal
Legal Issues
- 1 Whether the appellants are entitled to bond pending appeal.
- 2 Whether there are new or novel factors justifying a different decision from the previous ruling denying bond.
- 3 Whether the appeal has overwhelming chances of success.
Ratio Decidendi
The court found that there were no new or novel factors presented since the previous denial of bond pending appeal by Meoli J. The court was not persuaded that the appeal had overwhelming chances of success. The concerns raised in the pre-bond report remained unaddressed. Given that the appeal had already been filed and a hearing date fixed, the court determined that the proper course was to proceed to the substantive hearing of the appeal rather than grant bond pending appeal. Accordingly, the application for bond pending appeal was rejected.
Court Disposition
application for bond pending appeal rejected
Orders
- The application for bond pending appeal is rejected.
- The matter to proceed to hearing on 24th February, 2014 as earlier fixed.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CRIMINAL APPEAL NO. 21 OF 2013
ABDALLA KIRAO MKARE WANJE
ALI KIRAO WANJE
EMMANUEL MLEWA MKARE
SIRIA NGUMBAO CHARO
LILIAN KAZUNGU......….................................................….. APPELLANTS
VERSUS
REPUBLIC ……….……....................................................…RESPONDENT
(From the Conviction and Sentence in Criminal case No. 411 of 2006 Malindi Chief Magistrate's Court – Hon. Shiundu - PM)
RULING
Before this Court is a second application for bond pending appeal expressed to be brought under section 357 of the Criminal Procedure Code.
The grounds are that the appellants have appealed from the decision and Judgment of Hon. Shiundu Principal magistrate delivered on 21st March, 2013.
Further that the appeal has high chances of success and that for the seven (7) years that the case was pending hearing and determination the appellants were out on bond and at no time did they abscond.
I have heard Mr. Shimaka Advocate for the fifth appellant and allowed Mr. Otara for 1st, 2nd, 3rd and 4th Appellants to file written submissions which he did and which I have had occasion to peruse.
This application is opposed and Mr. Jami prosecution counsel has served the appellants a Notice of enhancement of Sentence from fifteen (15) years to life imprisonment. I have perused the lower court record of proceedings, the pre bond report and the ruling of my sister Meoli Judge on the substantive application for bond pending appeal. She did make a finding that she was not persuaded that the appeal preferred has an overwhelming chance of being successful and she proceeded to reject the application.
There is no evidence that has been adduced to the effect that between the time of making her ruling and now, there have arisen other novel factors to persuade this Court to arrive at a different conclusion. I have also noted the concerns raised in the pre-bond report and I am of the considered view since the appeal has been filed and a date for hearing has been fixed the case should proceed to hearing of the substantive appeal. The application for bond pending appeal is rejected for now. The matter to proceed to hearing on 24th February, 2014 as earlier fixed.
Ruling delivered dated and signed tis 11th day of December, 2013.
…................
M. MUYA
JUDGE
11TH DECEMBER, 2013
In open Court in the presence of:-
Counsel for the appellants Mr. Otara for 1st, 2nd, 3rd and 4th
Mr. Shimaka for 5th Appellant
Court clerk Musundi
11th December, 2013
Before M. Muya- Judge
Mr. Otara for 1st, 2nd, 3rd and 4th Appellants
Mr. Shimaka for the 5th Appellant
Mr. Otara: We had filed a motion which was served on the Director of Public Prosecution.
Mr. Otara: We pray to be served with the record of proceedings
Court: Deputy Registrar to ensure that Counsels are served with record of proceedings.
…...................
M. MUYA
JUDGE
11TH DECEMBER, 2013.