[2014] KEHC 8163 (KLR)
The court found that the applicant's appeal had a high likelihood of success, particularly due to the trial court's failure to comply with Section 200(3) of the Criminal Procedure Code when a new magistrate took over the case. The court determined that this procedural lapse constituted an exceptional circumstance...
Source-derived case information.
- Citation
- [2014] KEHC 8163 (KLR)
- Parties
- Applicant: Edward Mudamba Mwasiagi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 195 of 2014
- Procedural Posture
- Miscellaneous Criminal Application / Application for Bail Pending Appeal
- Outcome
- application allowed
- Judges
- LA Achode
- Legal Topics
- Bail Pending Appeal, Appeal Success Probability, Section 200 3 Criminal Procedure Code, Defective Charge Sheet, Sentencing Disparity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Mudamba Mwasiagi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant should be granted bail pending the hearing of his criminal appeal.
- 2 Whether there exist exceptional or unusual circumstances justifying bail pending appeal.
- 3 Whether the trial court failed to comply with Section 200(3) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the applicant's appeal had a high likelihood of success, particularly due to the trial court's failure to comply with Section 200(3) of the Criminal Procedure Code when a new magistrate took over the case. The court determined that this procedural lapse constituted an exceptional circumstance justifying the grant of bail pending appeal. The court also noted that there was no defect in the charge sheet and that the applicant had complied with all bond terms during trial. Consequently, the application for bail pending appeal was allowed on the basis of the likelihood of appeal success and the interests of justice.
Court Disposition
application allowed
Orders
- The applicant may be released on bond of Kshs.500,000 with one surety of like amount.
- The surety shall be examined by the Deputy Registrar.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISCELLANEUS CRIMINAL APPLICATION NO. 195 OF 2014
EDWARD MUDAMBA MWASIAGI ...................................... APPLICANT
VERSUS
REPUBLIC .....................................................................RESPONDENT
R U L I N G
This application has been brought by way of Chamber Summons dated 26th June 2014, under Section 357of the of the Criminal Procedure Code Cap 75 Laws of Kenya. It is supported by the affidavit of Hellen Vutagwa of the same date. It mainly seeks that the court be pleased to admit the applicant to bail pending the hearing of his criminal appeal No. 33 of 2014. The grounds of the application are as appears on the face thereof.
Learned counsel Mr. Macharia submitted that the applicant has an arguable appeal with high chances of success. He argued that the applicant was released on bond while on trial in the lower court and at no time did he fail to appear for hearing or mention. Further that the applicant is the bread winner of a family of three young children and a house wife, and the children are in school and therefore need his care and support.
Mr. Kabaka learned counsel for the state conceded the application arguing first, that the trial court failed to observe the provisions of Section 200(3) of the Criminal Procedure Code when one trial magistrate exited from the file and another one took over. Second, that the sentence imposed upon him was excessive in light of the fact that his co-accused convicted of the same charge received a much lighter sentence. Third, that the charge sheet was defective.
The principle consideration in an application for bail pending appeal as stated by the Court of Appeal in the case of Jivraj Shah vs. Republic [1986] LLR 605, wasinter alia, that bail pending appeal would be considered where there were existing exceptional or unusual circumstances upon which the Court of Appeal could fairly conclude that it was in the interest of justice to grant bail. Secondly, that it may be granted where it appears, prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged, and that the sentence or substantial part of it will have been served by the time the appeal is heard. In that instance conditions for granting bail will exist.
From the record the applicant was convicted in count 9, 10, 11 and 12 and this carried his name. There is therefore no discernible defect in the charge sheet. It does appear prima facie however, that his appeal is likely to succeed especially for reason of failure to apply Section 200(3) of the Criminal Procedure Code. Mr. Kabaka was therefore wise to concede this application.
Reasons wherefore I find that the application for bail pending appeal is meritorious and is allowed. The applicant may be released on bond of Kshs.500,000/= with one surety of like amount and the surety shall be examined by the Deputy Registrar.
SIGNED DATED and DELIVERED in open court this 24th day of July 2014.
L. A. ACHODE
JUDGE