[2015] KEHC 497 (KLR)
The court found that the appellant had served a substantial portion of his sentence and that the delay in obtaining the court martial proceedings was not attributable to him, his counsel, the court, or the DPP, but rather to the Department of Defence. To avoid prejudicing the appellant and to ensure his appeal is...
Source-derived case information.
- Citation
- [2015] KEHC 497 (KLR)
- Parties
- Appellant: Andrew N. Musyoki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 35 of 2015
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- Appellant admitted to bail pending appeal.
- Judges
- JV Juma
- Legal Topics
- Bail Pending Appeal, Court Martial Proceedings, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew N. Musyoki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant should be granted bail pending the hearing and determination of his appeal.
- 2 Whether the unavailability of court martial proceedings should prejudice the appellant's right to bail.
Ratio Decidendi
The court found that the appellant had served a substantial portion of his sentence and that the delay in obtaining the court martial proceedings was not attributable to him, his counsel, the court, or the DPP, but rather to the Department of Defence. To avoid prejudicing the appellant and to ensure his appeal is not rendered nugatory, the court exercised its discretion to grant bail pending appeal. The court emphasized the appellant's right to be considered for bail and the need to prevent injustice arising from administrative intransigence.
Court Disposition
Appellant admitted to bail pending appeal.
Orders
- Appellant admitted to bail pending appeal on a bond of Kshs.200,000 plus one surety of a like sum.
- Mention scheduled for 18/12/2015.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 35 OF 2015
ANDREW N. MUSYOKI.............................................APPELLANT
VERSUS
REPUBLIC.................................................................RESPONDENT
RULING
The applicant/appellant herein has applied to be released o bail during the pendency of his appeal. The appellant had been tried and convicted by a court martial sitting in Lanet and was sentenced to serve one year imprisonment with no option of a fine.
From the time when this application was filed on 23/6/15, several efforts have been made by both defence counsel and the office of the DPP to obtain certified copies of the proceedings of the court martial. All these efforts have borne no fruit. The court also stepped in and issued a summons to SOI legal at Defence Headquarters to avail the said proceedings. The court summons was also ignored. As such due to the intransigence of the Department of Defence the court is denied the opportunity to peruse the proceedings in this matter. Be that as it may the appellant was convicted and sentenced to serve one (1) year imprisonment in January 2015. He has filed an appeal against the judgment of the court martial. The appellant has already served ten (10) months of his sentence. There is the very real possibility that he may complete his full sentence before his appeal is heard and determined. The unavailability of the court martial proceedings cannot be blamed upon the appellant, his lawyer, this court or even the DPP. The blame lies squarely on the doorstep of the Department of Defence. In order not to further prejudice the appellant, in order not to render his appeal nugatory and alive to the fact that the appellant has a right to be considered for bail, I do hereby admit the appellant to bail pending the hearing and determination of his appeal. I grant appellant a bond of Kshs.200,000/- plus one surety of a like sum.
Read in open court.
Mr. Mongeri for the accused
Mr. Chirchir for DPP
Mention 18/12/2015.
Dated at Nakuru this 6th day of November, 2015.
MAUREEN A. ODERO
JUDGE