[2016] KEHC 8127 (KLR)
The court found that the State's concession that the sentence imposed by the trial court may be illegal constituted an exceptional circumstance. This, coupled with the likelihood of success on appeal regarding the sentence, satisfied the threshold for granting bail pending appeal. The court held that the appellant's...
Source-derived case information.
- Citation
- [2016] KEHC 8127 (KLR)
- Parties
- Appellant: David Mutuku Sila; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 116 of 2016
- Procedural Posture
- Criminal Appeal / Application for Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- LK Kimaru
- Legal Topics
- Bail Pending Appeal, Dangerous Driving, Sentencing Illegality
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mutuku Sila
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the appellant should be granted bail pending the hearing and determination of his criminal appeal.
- 2 Whether there exist exceptional or unusual circumstances justifying bail pending appeal.
- 3 Whether the sentence imposed by the trial court was illegal or disproportionate.
Ratio Decidendi
The court found that the State's concession that the sentence imposed by the trial court may be illegal constituted an exceptional circumstance. This, coupled with the likelihood of success on appeal regarding the sentence, satisfied the threshold for granting bail pending appeal. The court held that the appellant's application had merit and allowed it, setting conditions for his release on bail or cash bail with surety, and requiring monthly mention before the Deputy Registrar until the appeal is heard.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The appellant shall be released on bail pending appeal on condition that he posts bond of Kshs.400,000/- with one surety of the same amount or deposits a cash bail of Kshs.200,000/-.
- The appellant shall appear before the Deputy Registrar for mention of the appeal once every month until the appeal is heard.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OFKENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPEAL CASE NO.116 OF 2016
(An Appeal arising out of the conviction and sentence of Hon. Kithinji A. R. - PM delivered on 12th August 2016 in Makadara dCM.TR. Case No.7151 of 2009)
DAVID MUTUKU SILA……..……………….APPELLANT
VERSUS
REPUBLIC ………………………………..RESPONDENT
RULING
The Appellant, David Mutuku Sila was convicted of three (3) counts of causing death by dangerous driving. He was sentenced to pay a fine of Kshs.100,000/- for each of the three counts or in default he was to serve five (5) years imprisonment on each count. The Appellant was aggrieved by his conviction and sentence. He has lodged an appeal before this court. The appeal is pending hearing and determination.
Pending the hearing of the appeal, the Appellant has applied to be released on bail pending appeal. The Appellant states that he has an arguable appeal which will likely succeed during hearing. He was aggrieved with the manner in which the trial court assessed the evidence which found him guilty of the offences that he was charged. He was of the view that the facts of the case actually disclosed that he was not to blame for the accident. He took issue with the manner in which the trial court sentenced him. He was of the view that the sentence was disproportionate and was not clear whether the Appellant was to serve the sentences concurrently or consecutively. Ms. Nyauncho for the State conceded to the application on the sole ground that the sentence that was imposed by the trial court may well be found to be illegal during the hearing of the appeal.
The principles to be considered by this court in deciding whether or not to release the Applicant on bail pending appeal were set out by the Court of Appeal in Jivraj Shah –vs- Republic [1986] KLR 605 at page 606:
“There is not a great deal of local authority on this matter and for our part such as we have seen and heard tends to support the view that the principal consideration is if there exist exceptional or unusual circumstances upon which this court can fairly conclude that it is in the interest of justice to grant bail. If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point in law to be urged, and that the sentence or a substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist. The decision in Somo –vs- Republic [1972] E A 476 which was referred to by this court with approval in Criminal Application No.NAI 14 of 1986, Daniel Dominic Karanja –vs- Republic where the main criteria was stated to be the existence of overwhelming chances of success does not differ from a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed. The proper approach is the consideration of the particular circumstances and the weight and relevance of the points to be argued. It is almost self-defeating to attempt to define phrases or to establish formulae. There is a helpful passage in Archbold, Criminal Pleading Evidence and Practice, 41st Edition page 783, paragraph 7 – 86. ”
In the present application, the State concedes that there is likelihood that the Appellant’s appeal on sentence may succeed during the hearing of the appeal because the trial court failed to consider the applicable law when he sentenced the Appellant. This court agrees with the State that on that ground alone, the Appellant’s appeal has an overwhelming chance of success. In the premises therefore, the application for bail pending appeal has merit and is hereby allowed. The Appellant shall be released on bail pending appeal on condition that he posts bond of Kshs.400,000/- with one surety of the same amount or in the alternative he shall deposit a cash bail of Kshs.200,000/-. He shall be required to appear before the Deputy Registrar for Mention of the appeal once every month until the appeal is heard. It is so ordered.
DATED AT NAIROBI THIS 29TH DAY OF SEPTEMBER 2016
L. KIMARU
JUDGE