[2013] KEHC 2276 (KLR)
The court found that, although it would not delve into the merits of the appeal at this stage, the sentence imposed and the time likely to elapse before the appeal is heard meant the applicant could serve a substantial part of his sentence before determination. In the interests of justice and liberty, this justified...
Source-derived case information.
- Citation
- [2013] KEHC 2276 (KLR)
- Parties
- Appellant: Duncan Wambua Kimeu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 69 of 2013
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application allowed
- Judges
- LN Mutende
- Legal Topics
- Bail Pending Appeal, Criteria for Bail, Overwhelming Chance of Success, Sentence Served, Liberty Interest
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Wambua Kimeu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success to justify release on bail.
- 3 Whether the period already served by the applicant is substantial enough to warrant bail.
Ratio Decidendi
The court found that, although it would not delve into the merits of the appeal at this stage, the sentence imposed and the time likely to elapse before the appeal is heard meant the applicant could serve a substantial part of his sentence before determination. In the interests of justice and liberty, this justified granting bail pending appeal, even without a finding of overwhelming chances of success.
Court Disposition
application allowed
Orders
- The applicant shall be released on a cash bail of Kshs 400,000/=.
Full Case Text
Judgment text and source record
20 paragraphs
No. 77/13
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO.69 OF 2013
DUNCAN WAMBUA KIMEU ………………………...…..APPELLANT
VERSUS
REPUBLIC…………………………………………...RESPONDENT
(Being an appeal from the original conviction and sentence in Machakos Chief Magistrate’s Court, Criminal Case No. 141/2011 by J. Omange, SPM on 27/4/2012)
RULING
Duncan Wambua Kimeuhereinafter “the applicant” was charged, tried, convicted for the offence of stealing a motor vehicle contrary to section 278 (a) of the Penal Code. He was sentenced to five (5) years imprisonment.
Being aggrieved, he appealed against the conviction and sentence. He now seeks to be released on bail pending appeal. The application is premised on grounds that the appeal has overwhelming chances of success which call for release of the applicant lest he serves the whole or substantial part of the sentence.
Counsel for the applicant, Mr. Makundi submitted that the application met the criteria of granting an application of that nature. The appeal has an overwhelming chance of success because theft had not been demonstrated. The applicant having served one (1) out of the five (5) years imprisonment, he sought his release on bail.
The application was opposed. Mr. Mwangi, the learned State Counsel, guided by the authority of Dominic Karanja versus Republic KLR 612,argued that the appeal had no chance of succeeding. He alluded to the evidence adduced as to ownership of the motor vehicle and the intent to commit the offence. On the issue of whether the Applicant will have served a substantial part of the sentence prior to the appeal being heard, he argued that the term of sentence served so far was not substantial.
Pursuant to the principles laid down in the Dominic Karanja case cited, it must be established that the appeal has overwhelming chance of success such that there is no justification for depriving the applicant liberty.
Having duly perused the Lower Court proceedings, I hereby restrain myself from delving in details of the appeal to be argued. I however, take into consideration the sentence imposed. By the time the appeal is concluded the applicant may have served a substantial part of the sentence. In the premises, justice would call for allowing of the application.
I therefore allow the application as sought. The applicant shall be released on a cash bail of Kshs 400,000/=.
It is so ordered.
DATED, SIGNED and DELIVEREDat MACHAKOS this 10TH day of SEPTEMBER, 2013.
L.N. MUTENDE
JUDGE