[2001] KEHC 98 (KLR)
The court found that the matters raised by the applicant, including possible duplicity of charges, the definition of a private part, and the prosecution's failure to call a key witness, appeared on their face to favour the applicant. The judge concluded that the appeal had overwhelming chances of success and that it...
Source-derived case information.
- Citation
- [2001] KEHC 98 (KLR)
- Parties
- Appellant: Gedion Muna Wachira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 170 of ??
- Procedural Posture
- Miscellaneous Criminal Application / Application for Bail Pending Appeal
- Outcome
- bail pending appeal granted
- Legal Topics
- Bail Pending Appeal, Indecent Assault, Duplicity of Charges, Assessment of Private Parts, Prosecution Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gedion Muna Wachira
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Application for Bail Pending Appeal
Legal Issues
- 1 Whether there are exceptional or unusual circumstances justifying bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success.
- 3 Whether the charges on which the applicant was convicted were bad for duplicity.
Ratio Decidendi
The court found that the matters raised by the applicant, including possible duplicity of charges, the definition of a private part, and the prosecution's failure to call a key witness, appeared on their face to favour the applicant. The judge concluded that the appeal had overwhelming chances of success and that it would be unsafe to keep the applicant in prison pending the determination of the appeal. Consequently, the applicant was granted bail pending appeal on his own bond with sureties.
Court Disposition
bail pending appeal granted
Orders
- The applicant is released on his own bond of Kshs.100,000 plus two sureties of similar amount to be approved by the Deputy Registrar.
- Mentions of the applicant’s appeal shall be determined by the Deputy Registrar of this court.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAKURU MISC. CRIMINAL APPLICATION NO.170 OF 2000
GEDION MUNA WACHIRA……………………………..APPELLANT VERSUS REPUBLIC…………………………………………………..RESPONDENT R U L I N G
The application before me is for bail pending appeal. The applicant and another were found guilty of indecent assault contrary to Section 144(1) of the Penal Code and Assault contrary to section 251 of the Penal Code. The applicant was sentenced to serve 4 years in prison for indecent assault and fined Kshs.5000/- in default 6 months imprisonment for assault under Section 251 of the Penal Code.
I think it is now settled in Kenya that bail pending appeal will only be granted if the applicant can show:-
(i) that there are exceptional or unusual circumstances, or
(ii) that the appeal has overwhelming chances of success.
In this case the Judge who will hear the appeal will have to decide the following pertinent matters:-
(a) Whether the charges on which the applicant was convicted were bad for duplicity
(b) Whether a thigh is a private part as pleaded in the particulars of the charge.
(c) Whether the prosecution refused to call the girl who was in the company of the complainant because her evidence would have been adverse to the prosecution case.
All these matters appear on the face of it to be in favour of the applicant. But it is for the Judge who will hear the appeal to make a decision.
As it is now, I think it is unsafe to keep the applicant in prison as I think his appeal has overwhelming chances of success. I order that the applicant be released on his on bond of Shs.100,000/- plus two sureties of similar amount to be approved by the Deputy Registrar of this court. There will be mentions of the applicant’s appeal as shall be determined by the Deputy Registrar of this court. Dated and delivered at Nakuru this 26th day of January, 2000
D. M. RIMITA JUDGE 26. 1.2001.