[2012] KEHC 54 (KLR)
The court found that the applicant's appeal was arguable with a probability of success, particularly in light of the alleged procedural breach concerning Section 211 of the Penal Code. The court held that this was sufficient ground to grant bail pending appeal, as the interests of justice required the applicant's...
Source-derived case information.
- Citation
- [2012] KEHC 54 (KLR)
- Parties
- Applicant: Edin Nurrow Mohamud; Respondent: Republic of Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 66 of 2013
- Procedural Posture
- Criminal Miscellaneous Application / Bail Pending Appeal
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Bail Pending Appeal, Procedural Irregularity, Section 211 Penal Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edin Nurrow Mohamud
Applicant
Republic of Kenya
Respondent
Procedural Posture
Criminal Miscellaneous Application / Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether there was a breach of procedure, specifically non-compliance with Section 211 of the Criminal Code.
- 3 Whether the appeal has an arguable chance of success.
Ratio Decidendi
The court found that the applicant's appeal was arguable with a probability of success, particularly in light of the alleged procedural breach concerning Section 211 of the Penal Code. The court held that this was sufficient ground to grant bail pending appeal, as the interests of justice required the applicant's release while the appeal was being determined. The court further considered that even if a retrial were to be sought by the prosecution, the appeal still had merit. Accordingly, the application for bail pending appeal was allowed, subject to the applicant executing a bond or depositing cash bail and surrendering his passport.
Court Disposition
application allowed
Orders
- The applicant shall be released on executing a bond of Kshs. 500,000 with one surety of equal sum or by depositing cash bail of Kshs. 200,000.
- The applicant shall deposit his passport with the court.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Milimani Commercial Courts)
Criminal Miscellaneous Application 66 of 2013 [if gte mso 9]><![endif]
EDIN NURROW MOHAMUD ………………………………..APPLICANT
VERSUS
REPUBLIC OF KENYA ………………………………… …RESPONDENT
RULING
The applicant was convicted of the offence of breaking into a go- down and committing a felony contrary to Section 306 (a) of the Penal code and sentenced to five years imprisonment. Before me is an application for bail pending appeal filed by the applicant by way of Notice of Motion supported by the grounds appearing on the face of the application an affidavit sworn by the applicant.
Upon directions given by the court the applicant filed written submissions but there was no reply by the republic. The record shows that the learned counsel for the republic was served with the said submissions and upon perusal submitted that if the basic complaint by the applicant is breach of procedure and in particular non-compliance with Section 211 of the Criminal Code, then they needed not reply.
On my part, I have gone through the record before the resting with the judgment of the learned trial magistrate. Having done so, I have formed the view that there is an arguable appeal with a probability of success even if a retrial were to be sought by the prosecution. Having so observed, I find that the application succeeds and that the applicant shall be released on bail as prayed in his application. Accordingly the applicant shall be released on executing a bond of Kshs. 500,000/= with one surety of equal sum or by depositing cash bail of Kshs. 200,000/=. He shall also deposit his passport with the court.
Orders accordingly.
SIGNED DATED and DELIVERED in open court this 18th day of March, 2012.
A.MBOGHOLI MSAGHA
JUDGE
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