[2018] KEHC 5407 (KLR)
The court found that although no special or extraordinary circumstances were demonstrated, the applicant had shown that his appeal was not frivolous or vexatious. The court noted that the complainant did not testify and that evidence recorded by a previous magistrate was used by a succeeding magistrate in a case...
Source-derived case information.
- Citation
- [2018] KEHC 5407 (KLR)
- Parties
- Applicant: Charles Mukundi Njeru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 17 of 2018
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- FN Muchemi
- Legal Topics
- Bail Pending Appeal, False Pretences, Admissibility of Evidence, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mukundi Njeru
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the appeal has high chances of success to warrant bail.
- 3 Whether there are special or extraordinary circumstances justifying bail pending appeal.
Ratio Decidendi
The court found that although no special or extraordinary circumstances were demonstrated, the applicant had shown that his appeal was not frivolous or vexatious. The court noted that the complainant did not testify and that evidence recorded by a previous magistrate was used by a succeeding magistrate in a case that had started de novo, raising a crucial issue regarding the admissibility and handling of evidence. This scenario created a possibility that the appeal could be successful. Therefore, the court exercised its discretion to grant bail pending appeal, subject to conditions to ensure the applicant's attendance and compliance with court directions.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The applicant is released on bond of Kshs.300,000 with two sureties of a like amount.
- The applicant shall attend monthly mentions before the Deputy Registrar pending hearing and determination of the appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO. 17 OF 2018
CHARLES MUKUNDI NJERU..........APPLICANT/APPELANT
VERSUS
REPUBLIC...........................................................RESPONDENT
R U L I N G
1. The applicant in his application dated 18/05/2018 seeks for orders for bail pending appeal.
2. The applicant was charged and convicted of the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code. He was sentenced to serve two (2) years imprisonment.
3. The grounds relied on are that this appeal is likely to be successful on points of law; that the determination of the appeal is likely to take long which may result in the applicant serving the full sentence; that the appellant was denied an opportunity to get a handwriting expert to testify in his defence; that the case was not proved to the required standards and that improper evidence was allowed by the court.
4. The respondent opposed the application on the grounds that the appeal has no chances of success given that the evidence of the prosecution was overwhelming and that the defence was a mere denial. It was further stated that there are no special circumstances that have been demonstrated to justify granting of bail pending appeal. As for the likelihood of delay, the respondent argued that the appeal ought to be fixed for hearing at the earliest time possible.
5. The parties agreed to adopt their pleadings in canvassing this application. A copy of the judgment was availed for purpose of hearing this application. I have perused it and noted that the applicant was convicted of two charges. Firstly, an offence of obtaining Kshs.200,000/= by false pretences contrary to Section 13 of the Penal Code. Count II was that of threat to kill contrary to Section 223(1) of the same code.
6. It comes out clearly that the complainant did not testify in this case. There was evidence earlier recorded by a preceding magistrate which was used by the succeeding magistrate to convict the applicant in a case that had started de novo.
7. It is my considered opinion that the issue of the said evidence and the manner in which it was handled is a crucial one in this appeal. The appeal court must examine the said evidence and the procedure followed and determine its admissibility. Without pre-empting the appeal, this scenario demonstrates that there exists a possibility of the appeal becoming successful.
8. I find that although there are no special or extra-ordinary circumstances shown in this appliction, the applicant has demonstrated that his appeal is not vexatious or frivolous.
9. For the foregoing reasons, I allow the application for bail pending appeal in the following terms:-
(a) That the applicant be and is hereby released on bond of Kshs.300,000/= with two (2) sureties of a like amount.
(b) That pending the hearing and determination of this appeal, the applicant to attend monthly mentions before the Deputy Registrar.
(c) That the applicant shall not leave the jurisdiction of this court without the permission of the court.
10. It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 11TH DAY OF JULY, 2018.
F. MUCHEMI
JUDGE
In the presence of:-
Mr. Guantai for Mugambi for Applicant
Ms. Mati for Respondent