[2015] KEHC 5919 (KLR)
The court found that the appellant had demonstrated arguable grounds that may lead to the success of the appeal, and that the State did not oppose the application, acknowledging the appeal's high chances of success. Guided by the principles in Somo v R and Harish Jetha v R, the court exercised its discretion to...
Source-derived case information.
- Citation
- [2015] KEHC 5919 (KLR)
- Parties
- Appellant: Cornelius Kibet Kirui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 299 of 2013
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- JK Mulwa
- Legal Topics
- Bail Pending Appeal, Defilement Offence, Sentencing, Constitutional Rights
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cornelius Kibet Kirui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal under the circumstances.
- 2 Whether there are exceptional or unusual circumstances justifying release on bail pending appeal.
- 3 Whether the appeal has high chances of success.
Ratio Decidendi
The court found that the appellant had demonstrated arguable grounds that may lead to the success of the appeal, and that the State did not oppose the application, acknowledging the appeal's high chances of success. Guided by the principles in Somo v R and Harish Jetha v R, the court exercised its discretion to grant bail pending appeal, subject to strict conditions including a personal bond and surety, regular court attendance, and compliance with all court orders. The court emphasized that failure to comply with these conditions would result in automatic cancellation of bail.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The appellant shall sign a personal bond of Kshs. 250,000 with one surety of similar amount.
- During the pendency of the appeal, the appellant shall attend court once every month for mention.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL APPEAL NO. 299 OF 2013
(From Original Conviction And Sentence In Criminal Case No. 559 Of 2011 Of The Senior Principal Magistrate's Court At Narok, C. A. Nyakundi, P. M.)
CORNELIUS KIBET KIRUI...................APPELLANT
VERSUS
REPUBLIC.........................................RESPONDENT
RULING
1. The Appellant Cornelius Kibet Kirui was charged and convicted of the offence of defilement contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006, and convicted to serve 15 years imprisonment. He preferred an appeal against both conviction and sentence. On the 23rd March 2015, he filed an application under the provisions of Section 356 and 357 of the Criminal Procedure Code and Article 49 of the Constitution seeking to be released on bail/bond pending the hearing and determination of the appeal.
2. The application came up for hearing on the 23rd March 2015 when the State requested for time to consider the same. On the 26th March 2015, the State submitted that the State has no objection to the application and that the appeal as filed has high chances of success.
3. In his supporting affidavit for the bail application, the appellant, a young man who was in form four in secondary school when he was arrested and charged with the offence of defiling his fellow school mate then in form two states that his appeal has very high chances of success and that he wishes to go back to school and that his health has deteriorated as he suffers from ulcers and depression. He states that he will comply with all terms as the court may impose on him if granted bail.
4. Bail is a constitutional right under Article 49(1)(h) of the Constitution though not absolute. Upon conviction and sentence the right to bail is purely on the courts discretion which ought to be informed on various circumstances and principles that the courts have laid down, and in particular in the case of SOMO -VS- R (1972) EALR,among them the following:
(1) whether there are exceptional or unusual circumstances
(2) whether the appeal has overwhelming chance of success
(3) whether the appellant is of good character and whether the appeal has been admitted for hearing and
(4) that the appeal did not involve personal violence
(5) and whether the sentence would tempt the appellant to flee from the jurisdiction of the court.
5. I have considered the grounds stated in the application and the State's submission that it is not opposed to the application, and that the appeal has high chances of success. I have considered the proceedings before the trial court without going into detail of the merits of the appeal. I find that there are arguable grounds that may lead to a success of the appeal.
6. Guided by the principles laid down in the case of Somo -vs- R (supra) and Harish Jetha -vs- R Criminal Appeal No. 936 of 1968,I shall exercise my discretion allow the application, and release the appellant on bail upon the following terms:
(1) that he shall sign a personal bond of Kshs. 250,000/= with one surety of similar amount.
(2) that during the pendency of the appeal, he shall attend court once every month for mention.
(3) that he shall undertake to attend court whenever required to do so.
(4) that failure to abide with any of the above conditions without lawful and excusable reason shall lead to an automatic cancellation of the bail.
(5) Mention on the 24th April 2015.
It is so ordered.
Dated, signed and delivered at Nakuru this 27th day of March 2015
JANET MULWA
JUDGE
In the presence of:
Morintant for the Appellant
Rugut holding brief Chirchir for Respondent
Omondi – Court clerk