[2010] KEHC 1855 (KLR)
The court found that the appellant's application for bail pending appeal lacked merit. Upon re-examining the lower court evidence on a prima facie basis, the court determined that the appeal did not have overwhelming chances of success. The court applied the principle that bail pending appeal is only justified where...
Source-derived case information.
- Citation
- [2010] KEHC 1855 (KLR)
- Parties
- Appellant: David Ndumba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 111 of 2009
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Bail Pending Appeal, Sexual Offences, Standards for Bail, Appellate Review, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Ndumba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant should be granted bail pending the hearing and determination of his criminal appeal.
- 2 Whether the appeal has overwhelming chances of success to justify release on bail.
- 3 Whether exceptional or unusual circumstances exist to warrant bail pending appeal.
Ratio Decidendi
The court found that the appellant's application for bail pending appeal lacked merit. Upon re-examining the lower court evidence on a prima facie basis, the court determined that the appeal did not have overwhelming chances of success. The court applied the principle that bail pending appeal is only justified where the appeal has overwhelming chances of success or there are exceptional or unusual circumstances, neither of which were present in this case. The court also noted that the factors advanced by the appellant, including time already served and alleged inconsistencies in evidence, did not meet the threshold for granting bail pending appeal as established in precedent.
Court Disposition
application dismissed
Orders
- The appellant's application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU Criminal Appeal 111 of 2009
DAVID NDUMBA .......................................... APPELLANT
VERSUS
REPUBLIC .................................................. PROSECUTOR
RULING The appellant was convicted of the offence of rape contrary to Section 3 (1) (a) (c) as read with Section 7 of the Sexual Offences Act Number 3 of 2006. On 20th August 2008, he was sentenced to 7 years imprisonment.He has now moved this court by Notice of Motion dated 18th May 2010 seeking to be released on bail pending the hearing and determination of this appeal.In his affidavit in support of the said application, he deponed that his appeal has high chances of success.He further deponed that there is a likelihood of him serving his sentence before the hearing of this appeal.He has already been in custody for 2 years.The learned counsel for the appellant submitted referring to the evidence adduced before the lower court with a view to showing that there were inconsistencies and that the appellant’s appeal has overwhelming chances of success.The application was opposed by the learned state counsel Mr. Kimathi.He denied that there were any speculations in the evidence in the lower court.He then proceeded to take the court through the evidence which showed that the appellant was found by PW3 in the act of raping the complainant.I have considered the evidence of the lower court and have also considered the submissions made by counsels.The principle of granting bail was well set out in the case Dominic Karanja Vs. Republic [1986] KLR where it was stated thus:-
“The most important issue was that if the appeal had such overwhelming chances of success, there was no justification for depriving the applicant of his liberty and the minor relevantconsiderations would be whether there wereexceptional or unusual circumstances.
The previous good character of the applicant andthe hardships, if any, facing his family were not exceptional or unusual factors.Ill health per se would also not constitute an exceptional circumstance where there existed medical facilitiesfor prisoners.
A solemn assertion by an applicant that they will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal.”
The appellant’s application is found to have no merit.For having re-examined the lower court evidence on a prima facie basis, I find that the appellant’s appeal does not have overwhelming chances of success.
Dated and delivered at Meru this 2nd day of July 2010.
MARY KASANGO
JUDGE