[2004] KEHC 249 (KLR)
The court held that the applicants failed to demonstrate that their appeals had overwhelming chances of success or that there were exceptional or unusual circumstances justifying bail pending appeal. The fact that the applicants did not abscond during trial when granted bail was not a sufficient ground for granting...
Source-derived case information.
- Citation
- [2004] KEHC 249 (KLR)
- Parties
- Applicant: Elphas Ondieki Khatela; Applicant: Benard Okwemba Wanjala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 100 & 101 of 2004
- Procedural Posture
- Criminal Application / Application for Bail Pending Appeal
- Outcome
- applications dismissed
- Legal Topics
- Bail Pending Appeal, Appeal Chances of Success, Exceptional Circumstances, Presumption of Innocence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elphas Ondieki Khatela
Applicant
Benard Okwemba Wanjala
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated exceptional or unusual circumstances to warrant bail pending appeal.
- 2 Whether the appeals have overwhelming chances of success to justify granting bail pending appeal.
- 3 Whether the fact that the applicants did not abscond during trial is relevant to bail pending appeal.
Ratio Decidendi
The court held that the applicants failed to demonstrate that their appeals had overwhelming chances of success or that there were exceptional or unusual circumstances justifying bail pending appeal. The fact that the applicants did not abscond during trial when granted bail was not a sufficient ground for granting bail pending appeal, as the presumption of innocence no longer applies after conviction. The court relied on established authorities, including SOMO VS REPUBLIC and DOMINIC KARANJA VS REPUBLIC, to conclude that neither previous good character nor family hardship nor a promise not to abscond constitutes exceptional or unusual circumstances. Consequently, the applications for...
Court Disposition
applications dismissed
Orders
- The applications for bail pending appeal are dismissed.
- Applicants' counsel is urged to take necessary steps to have the appeal listed for hearing as soon as possible.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPLICATION NO. 100 & 101 BOTH OF 2004
(From original conviction and sentence in Criminal Case 2692 of 2003 of the
Senior Resident Magistrate’s Court at MOLO – P.K. KIRUI ESQ.)
ELPHAS ONDIEKI KHATELA…………............………...…….…………1ST APPLICANT
BENARD OKWEMBA WANJALA……….……….….....….……...…….2ND APPLICANT
VERSUS
REPUBLIC…………………………………………..……..…………..RESPONDENT
This is an application for bail pending appeal. It is made on the grounds that the appealswhich have already been filed have high chances of success and that the applicants werejailed for 12 months and the appeals may not be heard before the sentences are fullyserved.
The applicants were sentenced on 19th July, 2004. Counsel for the applicants submitted that during the trial in the lower court, the appellants had been granted bail and they faithfully attended court.
He therefore submitted that there was no likelihood of their absconding. He sought to rely on the case of CHIMABHAI VS REPUBLIC [1971] E.A. 343where it was held that anticipated delay in the hearing of an appeal together with other factors could constitute good grounds for granting bail pending appeal.
The applicants’ counsel did not make any effort to prove that the appeal had high chances of success. I have perused the proceedings and the judgment of the trial court and I am not persuaded that the appeal has overwhelming chances of success as stated in SOMO VS REPUBLIC [1972] E.A. 376 . No exceptional or unusual circumstances in the matter have been shown. In DOMINIC KARANJA VS REPUBLIC [1986] K.L.R. 612the Court of Appeal held that the previous good character of the applicant and the hardships, if any, facing his family were not exceptional or unusual factors and a solemn assertion by the applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal.
An applicant for bail pending appeal cannot rely on the argument that the lower court had granted him bail and he did not abscond and equally urge the appellate court to consider that as a point in his favour. This is so because the applicant for bail pending appeal, unlike an accused person seeking bail before trial, cannot rely on the presumption of innocence as he has already been convicted after a trial and he therefore must convince the appellate court that he has a meritorious appeal.
I dismiss the applications but hope that the applicants’ counsel will take the necessary steps to have the appeal listed down for hearing as soon as possible.
DATED, SIGNED & DELIVERED at Nakuru this 22nd day of October, 2004.
DANIEL MUSINGA
AG. JUDGE