[2015] KEHC 404 (KLR)
The court found that the applicant failed to demonstrate that his appeal had a high probability of success, as required by law. Furthermore, the applicant's claim that his aged, disabled, and widowed mother depended solely on him did not amount to exceptional or unusual circumstances warranting release on bail...
Source-derived case information.
- Citation
- [2015] KEHC 404 (KLR)
- Parties
- Appellant: Emiel Njeru Nyaga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 61 of 2015
- Procedural Posture
- Criminal Case / Ruling on Bail Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Bail Pending Appeal, Exceptional Circumstances, Probability of Success, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emiel Njeru Nyaga
Appellant
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated that his appeal has a high probability of success to warrant bail pending appeal.
- 2 Whether the applicant has shown exceptional or unusual circumstances justifying release on bail pending appeal.
Ratio Decidendi
The court found that the applicant failed to demonstrate that his appeal had a high probability of success, as required by law. Furthermore, the applicant's claim that his aged, disabled, and widowed mother depended solely on him did not amount to exceptional or unusual circumstances warranting release on bail pending appeal. The court applied the principles from Somo v. R (1972) EA 476, holding that neither ground advanced by the applicant satisfied the legal threshold for granting bail pending appeal. Consequently, the application was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed in its entirety.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL CASE NO. 61 OF 2015
EMIEL NJERU NYAGA ........................APPELLANT
VERSUS
REPUBLIC ….....................................RESPONDENT
R U L I N G
The applicant has applied for bail pending appeal arising out of his being convicted and sentenced to a concurrent imprisonment term of twenty five years in respect of the offences of obtaining money by false pretences (count 1), conspiracy to defraud (count 2), forgery (count 3), and making a document without authority. (Count 4).
The application is brought under Article 49 (1) (I) of the 2010 Kenya Constitution and section 357 (1) of the Criminal Procedure Code. In support of his application he has stated that he has a physically disabled mother. He has further stated that if released on bail he shall abide by all its terms and conditions.
The applicant in his supporting affidavit has stated that his appeal has high chances of success. He has also stated that his aged, disabled and widowed mother solely depends on him. Additionally he has stated that unless he is released on bail, her mother will suffer. This is the main affidavit evidence that he relies in his application.
An applicant for release on bail pending release on bail pending appeal must satisfy one of the two following conditions. First, he has to demonstrate that his appeal has high chances of success according to the High Court in Somo v. R (1972) EA 476.
If he fails to demonstrate that his appeal has a high probability of success, the applicant may be released if he shows that there are exceptional or unusual circumstances in his appeal.
I have considered the applicant's affidavit evidence and the applicable law as set out in Somo v. R, supra. It is clear from that evidence that he has failed to demonstrate that his appeal has a high probability of success.
One of the major grounds in support of his application is that his aged, disabled and widowed mother stands to suffer unless he is released. According to him, his mother solely depends on him. This in itself does not constitute an exceptional or unusual circumstance to warrant his release on bail pending appeal. He has therefore failed to show that there are exceptional or unusual circumstances in his appeal.
In the light of the applicants affidavit evidence and the applicable law, I find that the applicant has failed to demonstrate his appeal has a high probability of success. He has also failed to show that there are exceptional circumstances in his appeal.
In the circumstances his application is hereby dismissed in its entirety.
Ruling read and delivered in open court in the presence of the Applicant and counsel for the Respondent.
DATED THIS 25TH DAY OF NOVEMBER 2015.
J.M. BWONWONGA
JUDGE. - 25. 11. 2015