[2013] KEHC 831 (KLR)
The court found that while the appeals on conviction were arguable, there was no convincing fact at this stage to show overwhelming chances of success. However, the sentence, though lawful, was considered high for first offenders, and there was a real likelihood that the appellants would serve the entire sentence...
Source-derived case information.
- Citation
- [2013] KEHC 831 (KLR)
- Parties
- Appellant: Charles Kisanya; Appellant: Edward Odhiambo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 178 of 2013
- Procedural Posture
- Criminal Appeal / Application for Bail Pending Appeal
- Outcome
- bail pending appeal granted
- Judges
- GMA Dulu
- Legal Topics
- Bail Pending Appeal, Overwhelming Chances of Success, Sentencing of First Offenders
- 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
Charles Kisanya
Appellant
Edward Odhiambo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the appellants are entitled to bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success.
- 3 Whether the sentence imposed was excessive for first offenders.
Ratio Decidendi
The court found that while the appeals on conviction were arguable, there was no convincing fact at this stage to show overwhelming chances of success. However, the sentence, though lawful, was considered high for first offenders, and there was a real likelihood that the appellants would serve the entire sentence before the appeal was heard and determined. This would render the appeal academic. On this basis, the court exercised its discretion to grant bail pending appeal, specifically on account of the sentence and the likelihood of its reduction on appeal.
Court Disposition
bail pending appeal granted
Orders
- The appellants are granted bail pending appeal.
- Each appellant to sign a bond of Kshs.100,000 with one surety of similar amount, or pay a cash bail of Kshs.50,000.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CRIMINAL APPEAL NO. 178 OF 2013
(An appeal against both conviction and sentence of Senior Principal Magistrate’s court at Vihiga in Criminal Case No. 962 of 2013 [S. N. MWANGI, AG. SRM) delivered on 26th September, 2013)
CHARLES KISANYA )
EDWARD ODHIAMBO) ……………….……. APPELLANTS
VERSUS
REPUBLIC ………………………..………………… RESPONDENT
RULING
This is an application dated 3rd October, 2013 filed by S. K. Ombaye & Company advocates on behalf of the two appellants. It is an application for bail pending appeal.
The application was brought under Section 357 (1) of the Criminal Procedure Code (Cap. 75). Having perused the file, I have seen a petition of appeal filed in respect of the conviction and sentence in Vihiga Senior Principal Magistrate’s court criminal case No. 962 of 2013.
Mr. Ombaye, learned counsel for the appellants made submissions in support of the application. Ms. Opiyo learned Prosecuting Counsel opposed the application.
In an application for bail pending appeal, the main consideration is whether the appeal has overwhelming chances of success. The appellants herein were represented by Mr. Lugadiru advocate when they were charged, pleaded to the charge, and were convicted and sentenced. No objection to the proceedings, as they progressed, was raised by counsel and recorded. The appellants have now appealed through a different advocate, which is their right.
Are there overwhelming chances of success in the appeal? In my view, the appeals on conviction are arguable. However, there is no fact that convinces me, at this stage, that the appeals on conviction have overwhelming chances of success.
The sentence, though it is actually lawful, appears to be on the higher side for first offenders. The appellants are likely to have served the entire sentences before the appeal is heard and determined. In that event, the appeals will be rendered academic. On this basis alone, I am of the view that the appellants be granted bail pending appeal, on account of sentence, as there are overwhelming chances of deduction of the same.
Consequently, I grant the appellants bail pending appeal. The appellants will be released on bail pending appeal on each signing a bond of Kshs.100,000/= with one surety of similar amount, or on each paying a cash bail of Kshs.50,000/=.
Mention of 26th February 2014. Appellants to attend mention.
Dated and delivered at Kakamega this 25th day of November, 2013
George Dulu
JUDGE