[2015] KEHC 3180 (KLR)
The court found that the applicant failed to demonstrate any exceptional or unusual circumstances warranting release on bail pending appeal. The reasons advanced—health, alleged overwhelming chances of success, and willingness to abide by bond terms—do not meet the threshold established in precedent. The court...
Source-derived case information.
- Citation
- [2015] KEHC 3180 (KLR)
- Parties
- Applicant: Bonface Rotich Monoo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 8 of 2015
- Procedural Posture
- Criminal Case / Ruling on Application for Bail Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Bail Pending Appeal, Assault Causing Bodily Harm, Presumption of Innocence, Exceptional Circumstances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bonface Rotich Monoo
Applicant
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal after conviction for assault causing bodily harm.
- 2 Whether the applicant has demonstrated exceptional or unusual circumstances justifying release on bail pending appeal.
- 3 Whether the appeal has overwhelming chances of success warranting bail.
Ratio Decidendi
The court found that the applicant failed to demonstrate any exceptional or unusual circumstances warranting release on bail pending appeal. The reasons advanced—health, alleged overwhelming chances of success, and willingness to abide by bond terms—do not meet the threshold established in precedent. The court emphasized that the existence of medical facilities in prison and the lack of clear evidence of overwhelming chances of success or exceptional circumstances preclude the grant of bail. The application was therefore dismissed in line with established legal principles governing bail pending appeal.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO. 8 OF 2015
BONFACE ROTICH MONOO …………………….………………. APPLICANT
VERSUS
REPUBLIC…………………...…………………………………… RESPONDENT
RULING
The appellant herein BONFACE ROTICH MONOO was convicted and sentenced for the offence of assault causing bodily harm contrary to Section 251 of the Penal Code. He was aggrieved by the judgment and preferred this appeal on several grounds.
The notice of motion brought pursuant to Section 350 of the Criminal Procedure Code seeks release on bail pending hearing and determination of appeal on grounds that the appeal will be rendered nugatory as the applicant is likely to serve the sentence or a fraction of the same by the time the appeal is heard.
In arguing the application Mr. Mukisu for the applicant added that the appeal has a high chance of success and the applicant is not likely to abscond as he was on bail previously.
Mr. Oimbo for the State opposed the application. He filed grounds of opposition to the effect that bail pending appeal was not a constitutional right, applicant’s presumption of innocence has fallen and the applicant does not have an overwhelming chance of success.
I have considered the rival submissions by counsel on record. So as not to prejudice the appeal I will not comment on whether there is an overwhelming chance of success or not but will safely say that this is an arguable appeal. In arriving at this ruling I am guided by the following decisions.
Dominic Karanja vs. Republic 1986 [KLR] at page 612 where the Court of Appeal stated inter alia
“The most important issue was that if the appeal had such overwhelming chances of success there is no justification for depriving the appellant his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.
The previous good character and the hardships, if any facing the family were not exceptional or unusual factors. His health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners.
A solemn assertion by an applicant that he will not abscond if released even if it is supported by surerities is not sufficient ground for releasing a convicted person on bail pending appeal………”
In Abdi vs. Republic [1991] KLR at 171 the court held inter alia,
“An application for bail pending appeal is to be granted in rare and exceptional circumstances.
To admit an applicant to bail is the decision of the court which must be judicially exercised keeping in sight all the facts relating to the application, all the matter material to the trial at the lower court, the grounds submitted in the petition and the chances of success and the nature of the trial. The time it would take for the appeal to be prosecuted and determined is by itself not a sufficient ground.”
The applicant by virtue of the sentence meted out lost the presumption of innocence. He has a sentence hanging over his head and the consideration for the bond is different from consideration for one awaiting trial.
The applicant cited 3 reasons
Health
Overwhelming chances of success
Willingness to abide by terms of bond.
From the above cited authorities the above 3 reasons do not qualify an admission to bail. The prison has medical facilities and in cases of extreme need prisoners are availed health facilities in other institutions. Second it cannot be said that one can deduce from the grounds a clear chance of success, this is a matter that will be argued at some stage for the courts determination. Thirdly there are no exceptional circumstances demonstrated. Guided by the authorities cited above this application must fail. It is therefore dismissed.
Dated at Bungoma this 12th day of May 2015.
ALI-ARONI
JUDGE.