[2013] KEHC 2278 (KLR)
The court found that the evidence adduced at trial was not weak and could not be said to be wanting. Therefore, it could not be asserted with certainty that the appeal had a chance of succeeding. In the absence of overwhelming chances of success or exceptional circumstances, the application for bail pending appeal...
Source-derived case information.
- Citation
- [2013] KEHC 2278 (KLR)
- Parties
- Appellant: Dominic Mutie Willy; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 138 of 2013
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bail Pending Appeal and Stay of Execution
- Outcome
- application for bail pending appeal and stay of execution dismissed
- Judges
- LN Mutende
- Legal Topics
- Bail Pending Appeal, Stay of Execution, Preparation to Commit Felony, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Mutie Willy
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Bail Pending Appeal and Stay of Execution
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether there are overwhelming chances of success in the appeal to justify stay of execution of sentence.
- 3 Whether exceptional or unusual circumstances exist to warrant the grant of bail pending appeal.
Ratio Decidendi
The court found that the evidence adduced at trial was not weak and could not be said to be wanting. Therefore, it could not be asserted with certainty that the appeal had a chance of succeeding. In the absence of overwhelming chances of success or exceptional circumstances, the application for bail pending appeal and stay of execution was rejected. The court emphasized that bail is only appropriate where the appeal is likely to succeed or there are unusual circumstances, neither of which was established by the applicant.
Court Disposition
application for bail pending appeal and stay of execution dismissed
Orders
- The application for release on bail pending appeal is rejected.
- The case should be fixed for hearing on a priority basis following admission to hearing.
Full Case Text
Judgment text and source record
25 paragraphs
No. 72/2013
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 138 OF 2013
DOMINIC MUTIE WILLY………………………………….APPELLANT
v
REPUBLIC………………………………………………...RESPONDENT
RULING
In an application dated 3rd July, 2013, Dominic Mutie Willy, hereinafter “the Applicant” seeks orders;-
“i. Stay of execution of sentence imposed by the trial magistrate in Mavoko Law Courts in Criminal Case No. 223/2012.
ii) Bail pending hearing and determination of Criminal appeal No. 138/2013”
The application is premised on grounds that the appeal has high chances of success; the sentence imposed is excessive and the applicant will be prejudiced if part or the whole of the sentence imposed is executed prior to the hearing and determination of the appeal.
In an affidavit deponed by the Applicant he states that he was charged with the offence of preparation to commit a felony. He was convicted by the trial magistrate Ms L.A Mumussaba and sentenced to three (3) years imprisonment. Having filed an appeal against the conviction and sentence he stands to suffer as he may serve a substantial part of the sentence prior to determination of the appeal. Having attended the case in the lower court faithfully he promises to abide with any terms to be imposed.
Mr Nzavi for the applicant in his submission stated that the appeal has high chances of success as the conviction was based on insufficient evidence and contradictory evidence.
Mrs Gakobo for the State opposed the application arguing that the applicant had not demonstrated that the appeal would be successful. The evidence adduced was sufficient to sustain the conviction. The contradictions alluded to in her opinion were immaterial. The prosecution having proved the case, there were no circumstances warranting the court to exercise its discretion.
I have considered rival submissions by both counsels for the Applicant and the learned State Counsel.
I am guided by the case of Dominic Karanja versus Republic [1986) KLR 612where the court of Appeal held 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 relevant considerations would be whether there were exceptional or unusual circumstances”
A perusal of proceedings and judgment thereof shows that the Applicant was sentenced to three (3) years imprisonment in the month of June 2013. The record of appeal has been prepared and the appeal is pending admission to hearing. Bail would be used to secure the applicant’s release if the evidence on record is so weak such that it should not have secured a conviction.
Having looked at the evidence adduced, the strength cannot be said to be wanting. It can therefore not be asserted with certainty that the appeal has a chance of succeeding.
From the foregoing, the application by the applicant for release on bail is rejected. Following admission to hearing the case should be fixed for hearing on a priority basis.
It is so ordered.
DATED, SIGNED and DELIVERED at MACHAKOS this4THday of SEPTEMBER, 2013.
L.N. MUTENDE
JUDGE