[2014] KEHC 4216 (KLR)
The court found that the applicants, having been convicted and sentenced to life imprisonment for causing grievous harm, are not automatically entitled to bail pending appeal. The applicants failed to demonstrate that their appeal has overwhelming chances of success, as the trial magistrate had thoroughly analyzed...
Source-derived case information.
- Citation
- [2014] KEHC 4216 (KLR)
- Parties
- Applicant: Francis Makuu Kivindyo; Applicant: Munyasya Kasilu; Applicant: Matulo Patrick; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 181 of 2013
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Bail Pending Appeal, Conviction and Sentence, Constitutional Rights, Grievous Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Francis Makuu Kivindyo
Applicant
Munyasya Kasilu
Applicant
Matulo Patrick
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to bail pending appeal after conviction and sentencing to life imprisonment.
- 2 Whether the appeal has overwhelming chances of success to justify release on bail pending appeal.
- 3 Whether the applicants have demonstrated exceptional or unusual circumstances warranting bail pending appeal.
Ratio Decidendi
The court found that the applicants, having been convicted and sentenced to life imprisonment for causing grievous harm, are not automatically entitled to bail pending appeal. The applicants failed to demonstrate that their appeal has overwhelming chances of success, as the trial magistrate had thoroughly analyzed the evidence before convicting them. No exceptional or unusual circumstances were established, as the claim of ill health by the 1st applicant was unsupported by medical documentation and prison facilities are available. The constitutional right to bail under Article 49 applies to persons presumed innocent, not to convicted persons. Therefore, the application for bail pending...
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
No. 296/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISCELLANEOUS NO. 181 OF 2013
FRANCIS MAKUU KIVINDYO….1ST APPLICANT
MUNYASYA KASILU…………..2ND APPLICANT
MATULO PATRICK …………3RD APPLICANT
VERSUS
REPUBLIC …................................RESPONDENT
RULING
In an Application dated 27th September, 2013, the applicants herein seek to be released on bail pending appeal.
Application is premised on grounds that the applicants have been convicted and sentenced to life imprisonment; being dissatisfied with the judgment and sentence thereof an appeal shall be lodged.
In support of the application is an affidavit deponed by Okenyo Omwanza George, Counsel, retained to conduct the matter who avers that the appellants are dissatisfied with the conviction and sentence and intend to lodge an appeal that has a high probability of success; the appellants are apprehensive that their constitutional rights will be traversed and they are sole bread winners of their respective families. Further he stated that the 1st applicant in particular suffers from an asthmatic condition whereby he requires to see a specialist twice a month.
The application was canvassed by way of written submissions. It was submitted on behalf of the applicants that the appeal has an overwhelming chance of success; bail is a constitutional guarantee and the applicants will not abscond.
In a response thereto, the State opposed the application. It was submitted that the applicants were no longer suspects therefore the presumption of innocence nolonger applied. They had not demonstrated that their appeal had overwhelming chances of success and there was no demonstration that the 1st applicant was asthmatic.
Conditions that would guide a court in a case of bail pending appeal were considered in the case ofDominic Karanja versus Republic [1986] KLR 612where the Court of Appeal held thus-
“i) the most important issue … is if the appeal has such overwhelming chances of success, there is no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances.
ii) The previous good character of the applicant and hardships, if any, facing his family were not exceptional or unusual factors. Ill health perse would also not constitute an exceptional circumstance where there existed medical facilities for prisoners.
iii) A solemn assertion by an applicant that he will not abscond, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal”
First and foremost, I wish to point out that the applicants were convicted and sentenced to serve life imprisonment for the offence of causing grievous harm contrary to Section 234 of the Penal Code on the 18th September, 2013. Submissions to the application were filed on the 1st November 2013. Until then there was no indication if an appeal had been preferred against the decision of the Lower Court.
I have perused proceedings of the Lower Court where the trial magistrate analyzed evidence adduced prior to reaching a conclusion to convict the applicants. It cannot be said with certainty that the appeal has overwhelming chances of succeeding.
Bail is a constitutional right as stipulated in Article 49 of the Constitutionof Kenya 2010 to persons who are arrested and presumed innocent, but for persons who are convicted like the instant applicants it cannot be said to be automatic.
Whether or not the applicants may abscond is not a condition to be considered at this stage. It has been alleged that the 1st applicant has ill-health. No medical document has been annexed to establish the allegation. ln any case there are medical facilities in prison that he would benefit from if indeed he is ill.
From the foregoing the application lacks merit. Accordingly, it is dismissed.
DATED, SIGNED and DELIVEREDat MACHAKOS this 3RDday of JUNE, 2014
L.N. MUTENDE
JUDGE