[2009] KEHC 2932 (KLR)
The court found that while the appellant may have an arguable appeal, it does not have high chances of success. There were no exceptional circumstances demonstrated to warrant the grant of bail pending appeal. The court also found no likelihood that the applicant would serve a substantial part of his sentence before...
Source-derived case information.
- Citation
- [2009] KEHC 2932 (KLR)
- Parties
- Appellant: Francis Mugendi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 138 of 2008
- Procedural Posture
- Bail Pending Appeal Application / Ruling on Application for Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- J Karanja
- Legal Topics
- Bail Pending Appeal, Suspension of Sentence, Constitutional Rights During Trial
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mugendi
Appellant
Republic
Respondent
Procedural Posture
Bail Pending Appeal Application / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal.
- 2 Whether the execution of the sentence should be suspended pending appeal.
- 3 Whether alleged breach of constitutional rights warrants bail or acquittal.
Ratio Decidendi
The court found that while the appellant may have an arguable appeal, it does not have high chances of success. There were no exceptional circumstances demonstrated to warrant the grant of bail pending appeal. The court also found no likelihood that the applicant would serve a substantial part of his sentence before the appeal is heard, given the court's capacity to hear criminal appeals expeditiously. The alleged breach of constitutional rights could not be determined without the original lower court file and should be addressed in the substantive appeal. Consequently, the application for bail pending appeal and suspension of sentence was dismissed.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
- The application for suspension of execution of sentence is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Suit 138 of 2008
FRANCIS MUGENDI………………………………….APPELLANT
VERSUS
REPUBLIC…………………………………………RESPONDENT
RULING
The Applicant through the firm of Njeru Ithiga Advocates has moved this court under Section 357 of the Criminal Procedure Code for 2 orders:-
1. That the Appellant/Applicant be granted bail pending appeal.
2. That there be suspension of execution of the sentence of 15 years imprisonment imposed on the Appellant /Applicant by the learned Senior Resident Magistrate at Runyenjes on 20/5/2008.
He relies on 3 grounds on the face of the application and on the supporting affidavit of his advocate dated 7th August 2008. The state opposes the application and maintains that the applicant’s appeal has no chances of succeeding, and further that there is no risk that by the time his appeal is heard he will have served a substantial part of the sentence.
On the issue of the appellant having been detained in custody for longer than allowed by the constitution, counsel for the state submitted that that in itself does not lead to an automatic acquittal.
I have carefully considered the application before me, the grounds and contents of the affidavit. I have also considered both counsel’s address to court. I have gone through the proceedings before the trial court. My considered view is that the appellant may have an arguable appeal. It is not nonetheless one that can be said to have high chances of success. On the issue of his constitutional rights having been breached, it is not possible to make any finding on that aspect without the original lower court file. He is however at liberty to take it up on the substantive appeal. I am also in agreement with learned counsel for the state that there is no likelihood t0000000hat the applicant will serve a substantial part of his sentence before the appeal is heard. This court is not over burdened with criminal appeals and the applicant’s appeal once filed and admitted will be heard with expedition. The offence he was convicted for is a very serious offence. It is of a personal nature, and the applicant is definitely serving a lawful sentence. I see no exceptional circumstances in this matter that would drive me to allowing this application.
Accordingly, this application must fail. The same is hereby dismissed.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 11th day of June 2009.
In presence of:- Mr. ithiga for applicant and Omwega for state.
Appellant also present.