[2008] KEHC 1540 (KLR)
The court found, upon perusal of the lower court proceedings and judgment, that the appeal had overwhelming chances of success. The court emphasized that the primary consideration for granting bail pending appeal is the likelihood of the appeal succeeding. The court noted that the respondent did not oppose the...
Source-derived case information.
- Citation
- [2008] KEHC 1540 (KLR)
- Parties
- Appellant: Bathlomew Kaburu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 142 of 2008
- Procedural Posture
- Criminal Appeal / Bail Pending Appeal Application
- Outcome
- Application for bail pending appeal allowed.
- Judges
- SP Ouko
- Legal Topics
- Bail Pending Appeal, Incitement to Violence, Grounds for Bail, Appeal Success Probability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bathlomew Kaburu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Bail Pending Appeal Application
Legal Issues
- 1 Whether the applicant should be granted bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success warranting bail.
- 3 Whether exceptional or unusual circumstances exist to justify bail.
Ratio Decidendi
The court found, upon perusal of the lower court proceedings and judgment, that the appeal had overwhelming chances of success. The court emphasized that the primary consideration for granting bail pending appeal is the likelihood of the appeal succeeding. The court noted that the respondent did not oppose the application and acknowledged contradictions in the evidence leading to conviction. The court, therefore, exercised its discretion to grant bail pending appeal, finding that the applicant met the threshold for such relief.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The applicant is released on cash bail of Kshs. 10,000 pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Criminal Case 142 of 2008
BATHLOMEW KABURU ……………………………. APPELLANT
VERSUS
REPUBLIC ………………………………………….. RESPONDENT
RULING
The applicant was tried and convicted for the offence of incitement to violence contrary to section 96(a) and (b) of the Penal Code. He was sentenced to eighteen months imprisonment. He has preferred this appeal to challenge both the conviction and sentence.
In the meantime by the instant application he is seeking to be admitted to bail pending appeal. The application is premised on the grounds that the appeal is arguable with reasonable chances of success. That the applicant may serve the sentence or substantial part of the sentence before the appeal is heard. That the applicant is sickly. In support of the application counsel for the applicant referred the court to the case of Kaguma V. R. (2004) E.A. 68.
Learned counsel for the respondent has not opposed the application submitting that indeed the evidence upon which the applicant’s conviction was based was contradictory.
I have considered these submissions and the authority cited. It is trite that the main consideration in an application for bail pending appeal is whether the appeal has overwhelming chances of success. There are other peripherial consideration such as exceptional or unusual circumstances. Previous good character of the applicant, hardship facing his family, illness or even an assertion that the applicant will not abscond are not exceptional circumstances. See Karanja V. R.(1986) KLR 612.
I have perused the proceedings and the judgment rendered in the lower court, and without making a definite finding, I am satisfied that the appeal has an overwhelming chances of success.
For that reason it is ordered that the applicant be released on cash bail of Kshs. 10,000/= pending the hearing and determination of the appeal herein.
Dated and delivered at Meru this 26th day of September 2008.
W. OUKO
JUDGE