[2015] KEHC 5142 (KLR)
The court held that bail pending appeal can only be granted where the appeal has overwhelming chances of success. Since the appellant pleaded guilty unequivocally and was sentenced to the statutory minimum term prescribed by section 308(1) of the Penal Code, there was no merit in the application for bail or for...
Source-derived case information.
- Citation
- [2015] KEHC 5142 (KLR)
- Parties
- Appellant: Francis Mwaniki Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 185 of 2011
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- J Ngaah
- Legal Topics
- Bail Pending Appeal, Plea of Guilty, Sentencing Guidelines, Preparing to Commit Felony
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mwaniki Mwangi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal after pleading guilty to the offence of preparing to commit a felony.
- 2 Whether the sentence imposed was lawful and subject to reduction.
Ratio Decidendi
The court held that bail pending appeal can only be granted where the appeal has overwhelming chances of success. Since the appellant pleaded guilty unequivocally and was sentenced to the statutory minimum term prescribed by section 308(1) of the Penal Code, there was no merit in the application for bail or for reduction of sentence. The trial and sentence were found to be proper and lawful, leaving no basis for appellate intervention.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL NO. 185 OF 2011
FRANCIS MWANIKI MWANGI………………………..........APPELLANT
VERSUS
REPUBLIC………………………………………………..RESPONDENT
RULING
The appellant was charged with the offence of preparing to commit a felony contrary to section 308 (1) of the Penal Code in the Principal Magistrate’s Court at Karatina, Criminal Case No. 637 of 2011. He was convicted on his own plea of guilty and sentenced to serve seven years imprisonment.
Despite having pleaded guilty, the appellant appealed against conviction and sentence; in the meantime, he has filed a notice of motion dated 16th July, 2013 seeking to be released on bond pending the hearing and determination of his appeal.
At the hearing of the motion, the appellant confirmed that he pleaded guilty to the charge but urged the court to consider reducing the sentence meted out against him.
Mr Njue for the state opposed the application for bail because, in his view, there is no chance that the appellant’s appeal will succeed at all. As far as the sentence is concerned, the learned counsel for the state indicated that the sentence meted out by the learned magistrate was the minimum sentence the law provides and therefore there is no basis for altering it.
The appellant does not appear to fault the learned magistrate for his conviction; all I understand to be seeking from this court is leniency and to that extent he has urged this court to reduce his imprisonment term. Unfortunately for the appellant, bail pending appeal can only be granted where the appeal has overwhelming chances of success. Where his plea to the charge was unequivocal and was sentenced in accordance with the law and neither his trial can be faulted in any way, there is no chance that the appeal will succeed.
The sentence the applicant is asking this court to reconsider is the mandatory minimum sentence that the court could possibly impose and thus cannot be interfered with; section 308of thePenal Code under which the applicant was charged and in which the sentence is prescribed states as follows:-
308. Preparations to commit felony
(1) Any person found armed with any dangerous or offensive weapon in circumstances that indicate that he was so armed with intent to commit any felony is guilty of a felony and is liable to imprisonment of not less than seven years and not more than fifteen years.
I find that there is absolutely no merit in the applicant’s application. It is hereby dismissed.
Signed, dated and delivered in open court this 6th day of March, 2015
Ngaah Jairus
JUDGE