[2017] KEHC 8068 (KLR)
The court found that the applicant had demonstrated sufficient grounds for the grant of bail pending appeal. The judge considered the merits of the appeal, noting weaknesses in the prosecution's evidence as highlighted by the applicant's counsel, and the applicant's status as a minor whose education would be...
Source-derived case information.
- Citation
- [2017] KEHC 8068 (KLR)
- Parties
- Applicant: Ali Kingi Baya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 7 of 2016
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application allowed
- Judges
- DO Chepkwony
- Legal Topics
- Bail Pending Appeal, Arson, Grievous Harm, Juvenile Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Kingi Baya
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending the hearing and determination of his criminal appeal.
- 2 Whether the appeal has high chances of success to warrant the grant of bail.
- 3 Whether the applicant's status as a minor and his educational needs justify release on bail.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for the grant of bail pending appeal. The judge considered the merits of the appeal, noting weaknesses in the prosecution's evidence as highlighted by the applicant's counsel, and the applicant's status as a minor whose education would be adversely affected by continued detention. The court also noted the applicant's consistent attendance at court and absence of evidence suggesting he would abscond. Weighing these factors, the court concluded there was a likelihood of the appeal succeeding and that the application was meritorious. Accordingly, the applicant was granted bail pending appeal on his own bond with a surety.
Court Disposition
application allowed
Orders
- The applicant may be released on his own bail of Ksh. 100,000.00 with one surety of a similar amount.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL APPEAL NO. 7 OF 2016
ALI KINGI BAYA……..APPLICANT
VS
REPUBLIC ………..RESPONDENT
RULING
This is a ruling in an application by way of appeal of Notice of Motiondated 14th March, 2016, where the applicant is seeking to be released on bail with no without surety pending thehearing of his appeal.
The applicant also seeks to have the court order that the execution of the sentence or order appealed against suspended pending the hearing of his appeal.
This application is premised on the grounds that:
i. The applicant has a meritorious appeal with high chances of success.
ii. Given the periodthe applicant has spent in Borstal Institution and the time it will take for the appeal to be heard and determined, the same may be rendered nugatory.
iii. The applicant’s court attendance while on bail is a demonstration that he shall not abscond from attending his appeal.
iv. The applicant is a school-going child and his education may be jeopardized if he continues to remain in Borstal institution.
The application is supported by an affidavit sworn by his counsel, Mr Yusuf Aboubakar who has attached copies of:
a. Charge sheet review KB’I’
b. Judgment reviewed KB’2’
c. Petition of appeal reviewed KB’3’
The applicant was charged with other one count of arson and three (3) counts of grievous harm.
In count 1, the applicant was charged with arson contrary to section 332 ( e) of the Penal code.
The facts being that:
“On 28th day of January, 2014 at Majaooni village in Majaoni sub location in Bamburi, Kisauni district within Mombasa county, the applicant willfully and unlawfully set fire to the dwelling house valued at Kshs. 150,000. 00 belonging to IBRAHIM BAIB.”
In counts II,III and IV, the applicant was charged with grievous harm contrary to section 234 of Penal code:
“The particulars being that: “On 28th day of January, 2014 at Majaooni village in Majaoni sub location in Bamburi, Kisauni district within Mombasa county, the applicant caused grievous harm to:
i. Ibrahim Baiba
ii. Ibrahim Baiba
iii. Naomi Ibrahim Baiba”
The applicant was tried, convicted for all the offences and sentenced to serve 3 years in Borstal Institution without an option of a fine.
During the hearing of the application, Mr Aboubakar submitted on the merits of the appeal by pointing out the weaknesses in the evidence which was adducedby the prosecution and which the trial magistrate relied on to convict the applicant.
He also submitted that the applicantis a minor and ought to have been given a chance on non-custodial sentence.
He further submitted that one can only be denied bail /pending appeal if it is shown that they are likely to abscond but in this case, the applicant has not been shown to be capable of such. He went on to submit that there is a possibility of the applicant’s appeal being allowed and it would therefore not be fair for him to serve the jail term and the appeal be allowed.
The application was orally opposed by M/s Ochola, counsel for state on the ground that the applicant’s counsel has not demonstrated that the appeal has a high chance of success.
M/s Ochola submitted that the prosecution’s evidence was well corroborated and the applicant introduced the alibi evidence in his defence late.
She further submitted that court attendance by an appellant during his trial in the lower court is normally not a ground to be considered when dealing with the issue of bail pending appeal.
To this, Mr. Aboubakar responded by saying that the state, by failing to file grounds of opposition had not opposed their application.
I have read through the copy of charge sheet and judgment attached to the supporting affidavit of the applicant’s counsel and considered all grounds of appeal, the affidavit in support of the application and submissions by both counsel. I am of the view that there is a likelihood of the appeal succeeding.
I therefore find the application meritable and allow it.
The applicant may be released on his own bail of Ksh. 100,000. 00 with one surety of a similar account.
Ruling delivered, dated and signed on 17th of January, 2017
D.O CHEPKWONY
JUDGE
In the presence of:
M/s Ocholla for the state
Mr Aboubakar for applicant
Court/Assistant: Constance