[2008] KEHC 2493 (KLR)
The court found that the grounds of appeal advanced by the appellant did not demonstrate overwhelming chances of success. The appellant's claim that the plea was not unequivocal and that extraneous matters were considered in sentencing were not sufficient to meet the threshold for bail pending appeal. The court...
Source-derived case information.
- Citation
- [2008] KEHC 2493 (KLR)
- Parties
- Appellant: Agnes Wanjiru Bundi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 9 of 2008
- Procedural Posture
- Criminal Appeal / Application for Bail Pending Appeal
- Outcome
- Application for bail pending appeal dismissed.
- Judges
- MM Kasango
- Legal Topics
- Bail Pending Appeal, Plea Equivocality, Sentencing Errors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Wanjiru Bundi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal.
- 2 Whether the appeal demonstrates overwhelming chances of success.
- 3 Whether there are exceptional or unusual circumstances justifying bail pending appeal.
Ratio Decidendi
The court found that the grounds of appeal advanced by the appellant did not demonstrate overwhelming chances of success. The appellant's claim that the plea was not unequivocal and that extraneous matters were considered in sentencing were not sufficient to meet the threshold for bail pending appeal. The court relied on established principles that bail pending appeal is only granted where there are overwhelming chances of success or exceptional circumstances, neither of which were present in this case. Consequently, the application for bail pending appeal was dismissed.
Court Disposition
Application for bail pending appeal dismissed.
Orders
- The Notice of Motion dated 16th January 2008 is dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 9 of 2008
AGNES WANJIRU BUNDI ……….…………………… APPELLANT
VERSUS
REPUBLIC ….……………………………………….. RESPONDENT
RULING
The applicant has brought before court the Notice of Motion dated 16th January 2008. That application seeks an order of the court to grant the applicant/appellant bond with or without sureties pending the hearing and the determination of his appeal. In support of that application the applicant’s advocate swore an affidavit where he stated that the appellant was convicted and sentenced to one year jail term for the offence of causing grievous harm. He deponed that that offence is bailable and that the appellant was ready to abide by any condition that the court may impose. The application was opposed by the learned state counsel. He argued that the submissions that the appellant had an appeal with overwhelming success was a hypothetical. This he said was because the language of the court was clearing indicated.
The appellant was charged on 7th January 2008 with causing grievous harm contrary to section 234 of the Penal Code. On the charge being read to him the appellant pleaded guilty. The appellant also confirm that the facts as given by the prosecution were correct. The appellant has now filed an appeal on the ground that that plea was not unequivocal. This the appellant stated was because she did not understand English which was the language used in reading out the charge. Further the appeal is grounded on the ground that the magistrate erred in law and fact in sentencing by considering extraneous matters. The advocate for the appellant argued that those grounds showed that the appellant had high chances of succeeding in her appeal. I have considered the grounds of appeal and I have found that the same do not show or demonstrate a high chance of success in the pending appeal. Hon. Justice Ochieng found as follows when he considered a similar application in KAGUNA – VS- REPUBLIC (2000) 1 EA:-
“For the Applicant to obtain bail pending appeal, he had to demonstrate overwhelmingchances of success. Minor relevant considerations would be whether there were exceptional or unusual circumstances. Previous good character of the Applicant, hardship facing the wife and children, mere ill health, or even a solemn assertion that the Applicant would not abscond, were not exceptional circumstances.”
Having found that the appellant’s appeal does not show that it has high chances of succeeding I do hereby dismiss the Notice of Motion dated 16th January 2008.
Date and delivered at Nyeri this 18th day of June 2008.
MARY KASANGO
JUDGE