[2014] KEHC 6996 (KLR)
The court found that the applicant had already served almost five months of her 18-month sentence and, given the delay in typing proceedings, it was likely that the appeal would not be heard within the next year. This constituted a special circumstance justifying the grant of bond pending appeal. The court also...
Source-derived case information.
- Citation
- [2014] KEHC 6996 (KLR)
- Parties
- Appellant: Ann Waihuni Mathenge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 118 of 2013
- Procedural Posture
- Criminal Appeal / Application for Bond Pending Appeal
- Outcome
- Application for bond pending appeal allowed.
- Legal Topics
- Bond Pending Appeal, Special Circumstances, Sentence Served, Appeal Success Probability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ann Waihuni Mathenge
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bond Pending Appeal
Legal Issues
- 1 Whether the applicant should be granted bond pending appeal due to the likelihood of serving a substantial part or whole of the sentence before the appeal is heard.
- 2 Whether there exist special circumstances justifying the grant of bond pending appeal.
- 3 Whether the appeal has overwhelming chances of success.
Ratio Decidendi
The court found that the applicant had already served almost five months of her 18-month sentence and, given the delay in typing proceedings, it was likely that the appeal would not be heard within the next year. This constituted a special circumstance justifying the grant of bond pending appeal. The court also noted that the appeal was arguable, particularly on the issue of whether the matter should have been treated as a civil case by guarantors rather than a criminal case. Consequently, the court exercised its discretion to allow the application and ordered the applicant's release on bond or cash bail pending the hearing and determination of the appeal.
Court Disposition
Application for bond pending appeal allowed.
Orders
- The applicant is released on bond of Ksh. 150,000 or in the alternative cash bail of Ksh. 100,000 pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL NO 118 OF 2013
ANN WAIHUNI MATHENGE......................................................APPELLANTS
Versus
REPUBLIC.….……..........…....................................................…RESPONDENT
(Appeal arising from the judgment of Hon V. Nyakundi
Resident Magistrate in Nyeri Cr. Case No. 404 of 2010)
RULING
The application before court is a notice of motion dated 24th October 2o13 in which the applicant seeks to be released on bond pending appeal the same is supported by the affidavit of the applicant in which she deponed that she is likely to serve the substantial part or whole of the sentence by the time the appeal is heard.
I have noted that the applicant was sentenced to 18 months in prison of which she has now served almost five months and chances are that this appeal might not be heard within the next one year as the proceedings are yet to be typed. This to my mind is a special circumstance which this court ought to take into consideration in determining whether or not to grand bond pending appeal.
On the issue as to whether the appeal has overwhelming chances of success I am of the view that this appeal is arguable on the issue as to whether it should have been a normal case of civil case by guarantors against the appeal
I would therefore allow the application herein and order that the applicant be released on bond of Ksh. 150,000/- or in the alternative cash bail of Ksh. 100,000 pending the hearing and determination of the appeal herein.
Dated signed and delivered at Nyeri this 13th day of February 2014.
J. WAKIAGA
JUDGE
Court: Ruling delivered in open court in the presence of Mr. Njue for the State and the appellant in person in the absence of her advocate.
J. WAKIAGA
JUDGE