[2014] KEHC 5480 (KLR)
The court found that while the appeal was arguable, it did not have overwhelming chances of success. Furthermore, the applicant failed to establish any exceptional circumstances that would justify the grant of bail pending appeal. The court emphasized that the principles for granting bail pending appeal are well...
Source-derived case information.
- Citation
- [2014] KEHC 5480 (KLR)
- Parties
- Appellant: Denis Kinyua Njeru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 19 of 2014
- Procedural Posture
- Criminal Appeal / Application for Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- DAS Majanja
- Legal Topics
- Bail Pending Appeal, Defilement Offence, Sexual Offences Act, Exceptional Circumstances, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Denis Kinyua Njeru
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated overwhelming chances of success in the intended appeal.
- 2 Whether exceptional circumstances exist to warrant the grant of bail pending appeal.
Ratio Decidendi
The court found that while the appeal was arguable, it did not have overwhelming chances of success. Furthermore, the applicant failed to establish any exceptional circumstances that would justify the grant of bail pending appeal. The court emphasized that the principles for granting bail pending appeal are well settled: the applicant must show both overwhelming chances of success and exceptional circumstances. As neither threshold was met, and with the appeal ready for hearing, the application for bail pending appeal was dismissed.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL APPEAL NO. 19 OF 2014
DENIS KINYUA NJERU ....................……...… APPELLANT
VERSUS
REPUBLIC …………………...........…….......RESPONDENT
(Being an application for bail pending appeal from the original judgment and conviction in Runjenjes Criminal Case No. 72 of 2014, Hon. Obiero, Ag PM )
RULING
The Notice of Motion before the court is dated 24th April 2014 and is brought by the appellant who wishes to be released on bail pending the hearing and determination of the appeal. He was convicted on 15th April, 2014 for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act (Act No. 3 of 2006) and sentenced to 20 years imprisonment.
There is no constitutional right to bail pending appeal as every conviction is lawful until set aside by the appellate court. The applicant therefore shoulders the burden for persuading the court that the intended appeal has overwhelming chances of success and that there are exceptional circumstances that warrant suspending the conviction pending appeal. These principles are now well settled. See, for example, Dominic Karanja v Republic (1986) KLR 612 and Chimambai v Republic (1971) E.A 343.
Mr Momanyi, counsel for the applicant, attacked the judgment of the court a quo on several grounds. First, the age of the child was not ascertained. Second, the medical evidence did not establish penetration. Third, on the whole the evidence was insufficient to establish a conviction. He cited several cases to support his propositions; Benson Wambasi Nyongesa v Republic (2010) eKLR, Tungwa Zungumzo v Republic (2011) eKLR and Elijah Onguti v Republic (2011) eKLR.
The State, through Ms Ingahizu, opposed the application on the ground that the principles for grant of bail pending appeal had not been established. She called in aid Dominic Karanja v Republic (Supra) and Dominic Sibi Peter v Republic (2014) eKLR.
I have considered the proceedings and judgment and without prejudicing the appeal, I find the appeal arguable though not one with overwhelming chances of success. The applicant has not established any exceptional circumstances to warrant the grant of bail pending appeal. As the proceedings are ready, I think the appeal will be heard in short order.
The application is dismissed.
DATED, SIGNEDand DELIVERED at EMBU this 30th day of April 2014
D.S. MAJANJA
JUDGE
Mr Momanyi instructed by Mogusu and Company Advocates for the applicant.
Ms Ing’ahidzu, State Counsel, instructed by the Director of Public Prosecution for the State.