[2013] KEHC 5101 (KLR)
The court found that, based on the submissions and the record, the appellant had made out a case for the grant of bail pending appeal. The court did not comment on the chances of success of the appeal but accepted that the threshold for granting bail pending appeal had been met, particularly as the application was...
Source-derived case information.
- Citation
- [2013] KEHC 5101 (KLR)
- Parties
- Appellant: David Ndonga Kimotho; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 182 of 2010
- Procedural Posture
- Criminal Appeal / Application for Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- J Wakiaga
- Legal Topics
- Bail Pending Appeal, Burden of Proof, Standard of Proof
- 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
David Ndonga Kimotho
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending the hearing and determination of the appeal.
- 2 Whether the appeal has overwhelming chances of success or exceptional circumstances exist to warrant bail pending appeal.
Ratio Decidendi
The court found that, based on the submissions and the record, the appellant had made out a case for the grant of bail pending appeal. The court did not comment on the chances of success of the appeal but accepted that the threshold for granting bail pending appeal had been met, particularly as the application was unopposed and the appellant raised arguable points regarding the burden of proof and doubt in the prosecution's case.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The appellant is released on bond of Ksh. 500,000 with one surety of similar amount or, in the alternative, cash bail of Ksh. 300,000.
- The appellant shall attend mention before the Deputy Registrar of the court once every 30 days, with the first mention on 21st March 2013, until final determination of the appeal.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
High Court at Nyeri
Criminal Appeal 182 of 2010 [if gte mso 9]><xml>
14. 00
</xml><![endif]
DAVID NDONGA KIMOTHO.........................................................APPELLANT
Versus
REPUBLIC................................................................................RESPONDENT
RULING
1. The application before the court is dated 16th January 2013 in which the applicant seeks that he be released on bond/bail pending the hearing and determination of the appeal.
2. It is supported by the affidavit of Mr. Charles Wahome Gikonyo the applicants advocate wheres he deponed that the appeal has overwhelming chances of success in that there was doubt in the prosecution case which doubt out to have been resolved in favour of the appellant.
3. That the learned trial magistrate erred in shifting the burden of prove from the prosecution to the appellant to prove his innocence.
4. The application is not opposed by Miss Kitoto for the State.
5. It must be pointed out that as was held in SOMO V R. [1972] E.A 476 the application for bail pending appeal must show that his appeal has overwhelming chances of success and that there were exceptional or unusual circumstances that exist.
6. I have looked at the proceedings before the trial court and without commenting on the chances of success of the appeal herein I agree with the submission by the appellant that the same has made out a case for the grant of bail pending appeal.
7. I therefore allow the application herein and order that the appellant be released on bail/bond pending appeal on the following terms:
a. Bond of Ksh. 500,000/= with one surety of similar amount or in the alternative
b. Cash bail of Ksh. 300,000/=.
c. The appellant to attend mention before the Deputy Registrar of this court once after every 30 days with the first such mention being on 21st March 2013 until final determination of the appeal.
Dated and delivered at Nyeri this 21st day of February 2013.
J. WAKIAGA
JUDGE
Miss Bigern for W. Gikonyo
Mr. Cheboi for the state.
Court: The ruling is read in open court in the presence of the above named.
J. WAKIAGA
JUDGE