[2010] KEHC 2377 (KLR)
The court found that the appellants failed to demonstrate overwhelming chances of success in their appeal or any exceptional circumstances that would justify granting bail pending appeal. The court noted that the memorandum of appeal was not properly annexed or referenced in the supporting affidavit, resulting in a...
Source-derived case information.
- Citation
- [2010] KEHC 2377 (KLR)
- Parties
- Appellant: Daniel Kiama Musa; Appellant: Helen Wanjiru Kiama; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 46 of 2010
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application for bail pending appeal dismissed
- Legal Topics
- Bail Pending Appeal, Grounds of Appeal, Exceptional Circumstances, Sentence Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Kiama Musa
Appellant
Helen Wanjiru Kiama
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellants have demonstrated overwhelming chances of success in their appeal to warrant bail pending appeal.
- 2 Whether exceptional circumstances exist to justify granting bail pending appeal.
- 3 Whether the appellants are likely to serve a substantial part of their sentence before the appeal is heard.
Ratio Decidendi
The court found that the appellants failed to demonstrate overwhelming chances of success in their appeal or any exceptional circumstances that would justify granting bail pending appeal. The court noted that the memorandum of appeal was not properly annexed or referenced in the supporting affidavit, resulting in a lack of nexus between the application and the grounds for appeal. Furthermore, the court observed that the appellants are serving a lawful sentence, and since the proceedings have already been typed, it is unlikely that they will serve a substantial part of their sentences before the appeal is heard. Consequently, there were no compelling reasons to grant bail pending appeal,...
Court Disposition
application for bail pending appeal dismissed
Orders
- The applications for bail pending appeal are dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
Criminal Appeal 46 of 2010
DANIEL KIAMA MUSA………………….....……………1ST APPELLANT
HELEN WANJIRU KIAMA ………………......……….. 2ND APPELLANT
VERSUS
REPUBLIC …………………………..........………….……..RESPONDENT
R U L I N G
The Applicants herein were convicted by the SRM Kerugoya on a charge of cutting crops of cultivated farm produce contrary to Section 354 (a) of the penal code.
They were each sentenced to 5 years imprisonment. Being dissatisfied with the conviction and sentence, they have both preferred appeals before this court.Before the Appeal can be processed and heard, they have moved the court for bail pending Appeal.
There are only 2 grounds on the face of the application - to wit
(a)That appellants have extremely good grounds of Appeal
(b)That the Appellants are in danger of serving a substantial part of the sentence before the Appeal is heard and determined and they will therefore suffer irreparable loss and damage.
In the affidavit sworn by their advocate one James Igati Mwai, he adds another ground stating that the appellants complied with the bail terms before the trial court.
Learned Counsel for the state opposed the said application arguing that the mere fact that they may serve a substantial part of the sentence should not move the court to grant them bail.He further urged that the memorandum of Appeal does not form part of the affidavits.I agree with him on that point.
The memorandum of Appeal though filed along with the Chamber Summons has not been referred to.It does not therefore comprise of an annexure to the affidavit.
There is therefore no nexus between the Chamber Summons, the affidavit and the memorandum of appeal or even the proceedings.
That being the case, this court is actually not able to refer to the said grounds or proceedings.To that extent, these applications were seriously deficient.
If I may consider the grounds on the face of the Application however, the fact that an appellant has an arguable appeal does not automatically guarantee him/her bail pending appeal.It has to be demonstrated that he/she has overwhelming chances of success in the Appeal.This has not been demonstrated here.
There are also no exceptional circumstances in this case that would warrant the applicants to be released on bail pending Appeal.They are not said to be ill nor have any other personal circumstances that may incline the court to grant them bail pending appeal been brought to the fore.
I note that they are serving a lawful sentence and since the proceedings herein have already been typed, the Appeal will not take too long to process.It is highly unlikely that they will serve a substantial part of the sentences before the Appeal are heard.
I find no compelling reasons whatever for me to grant them bail pending Appeal.
The applications are therefore dismissed.
Delivered, Signed and dated this 3rd day of June 2010 at Embu
W. KARANJA
JUDGE
In presence of:- Mr. Kiama for Mr. Igati Mwai for them Mr. Wohoro for State