[2013] KEHC 1867 (KLR)
The court held that after conviction, the applicant bears the burden of demonstrating exceptional or unusual circumstances to justify release on bail pending appeal. The court found that the applicant's argument regarding the equivocal nature of the plea, supported by reference to Adan v. Republic, raised...
Source-derived case information.
- Citation
- [2013] KEHC 1867 (KLR)
- Parties
- Applicant: Amos Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 63 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Bail Pending Appeal
- Outcome
- bail granted pending appeal
- Legal Topics
- Bail Pending Appeal, Traffic Offences, Plea Equivocality, Burden of Proof
- 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
Amos Ochieng
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated exceptional or unusual circumstances to warrant release on bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success to justify bail.
- 3 Whether the plea entered was equivocal.
Ratio Decidendi
The court held that after conviction, the applicant bears the burden of demonstrating exceptional or unusual circumstances to justify release on bail pending appeal. The court found that the applicant's argument regarding the equivocal nature of the plea, supported by reference to Adan v. Republic, raised substantial grounds that the appeal had overwhelming chances of success. Consequently, the court exercised its discretion to grant bail pending appeal, subject to the applicant posting a cash bail of Kshs.10,000.
Court Disposition
bail granted pending appeal
Orders
- The applicant shall pay a cash bail of Kshs.10,000 to await the hearing and determination of the appeal.
- The applicant shall appear before the Deputy Registrar to be given a mention schedule.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MISCALLEANOUS APPLICATION NO.63 OF 2013
AMOS OCHIENG ….................................................................APPLICANT
VERSUS
REPUBLIC.................................................................................RESPONDENT
R U L I N G
The applicant was an accused in Nyando Traffic Case No.537 of 2013 in which he faced four traffic charges of dangerous loading c/s 56(2) and (3) of the Traffic Act (Cap.403), carrying excess passengers under section 100(2) of the Act as amended by Act 2 of 2012, carrying uninsured passengers c/s 5(b) of the Insurance (Motor Vehicles Third Party Risks) Act (Cap 405) and operating a public service vehicle without a yellow band contrary to rule 70(1) of the Traffic Amendment Rules made under Cap 403. He pleaded guilty to each charge, was convicted and sentenced to a fine of Kshs.10,000/= in default 3 months in Count 1, Kshs.40,000/= in default one year in Count 2, Kshs.20,000/= in default 6 months in Count 3 and Kshs.2,000/= in default 30 days in Count 4. He was aggrieved by the conviction and sentenced and preferred an appeal. He seeks to be released on bail pending the hearing and determination of the appeal.
During trial an accused is constitutionally entitled to be released on bail. Where the state opposes his release it must call compelling evidence. The reason for this is that he is presumed innocent until he is proved, or pleads, guilty. Where he has been convicted and sentenced, the presumption is that he has been properly convicted and sentenced. The onus is therefore on him to show why he should be released on bail (RAGHBIR SINGH LAMBA .V. REPUBLIC [1958] EA 337). Such person can only be released on bail where there are exceptional or unusual circumstances. The appeal should have overwhelming chances of success.
Mr. Jamsumba argued the application for the applicant. The same was conceded in part and opposed in the other.
During plea, the trial court read the charges to the applicant to which he replied “It is true” on each count. When the prosecutor was asked to narrate the facts his answer was “Facts as per the particulars of the charge in each count.” A conviction followed. There was the complaint that the plea was equivocal and reference made to the decision in ADAN .V. REPUBLIC [1973] EA 445). This is not the time to pass judgment on the matter as that will be done during the hearing and determination of the appeal. All that I wish to say is that, having considered the application and heard counsel on both sides, I accept that the appeal has overwhelming chances of success and therefore the applicant is entitled to bail.
I ask that the applicant pays cash bail of Kshs.10,000/- to await the hearing and determination of the appeal. He will appear before the Deputy Registrar to be given a mention schedule.
Dated, signed and delivered this 15th day of October, 2013
A. O. MUCHELULE
J U D G E