[2016] KEHC 7632 (KLR)
The court found that the applicant had raised weighty grounds of appeal, particularly regarding whether the prosecution discharged its burden of proof in establishing that the applicant caused grievous harm and whether the sentence imposed was excessive. The court determined that these grounds were not frivolous and...
Source-derived case information.
- Citation
- [2016] KEHC 7632 (KLR)
- Parties
- Applicant: Geoffrey Njeka Shisia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 62 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Bail Pending Appeal
- Outcome
- application allowed
- Legal Topics
- Bail Pending Appeal, Burden of Proof, Grievous Harm, Sentencing Excessiveness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Njeka Shisia
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated exceptional or unusual circumstances to warrant grant of bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success or raises substantial points of law.
- 3 Whether the sentence imposed was excessive given the circumstances.
Ratio Decidendi
The court found that the applicant had raised weighty grounds of appeal, particularly regarding whether the prosecution discharged its burden of proof in establishing that the applicant caused grievous harm and whether the sentence imposed was excessive. The court determined that these grounds were not frivolous and thus constituted substantial points of law, satisfying the threshold for granting bail pending appeal. However, the court did not find the applicant's personal circumstances alone sufficient to warrant release. Consequently, the application was allowed on the basis of the merits of the appeal, subject to the applicant posting cash bail or bond with surety as specified.
Court Disposition
application allowed
Orders
- The applicant shall pay a cash bail of Kshs. 30,000 or deposit a bond of Kshs. 100,000 with one surety of a similar amount to be assessed by the Deputy Registrar.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. APPLICATION NO. 62 OF 2016
GEOFFREY NJEKA SHISIA……….……..…………………..APPLICANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
RULING
By Chamber Summons dated 17th February, 2016, the Applicant herein prays to be released on bail pending appeal. The grounds on which the application is premised in a nutshell, are that the Applicant has an appeal with overwhelming chances of success, that he is a family man with school going children who depend on him, that while undergoing trial he had been released on a cash bail of Kshs. 20,000/= and did not abscond the trial and that he will abide by any terms and conditions that the court will grant. The application is supported by the Applicant’s own affidavit sworn on 17th February, 2016 and a Supplementary Affidavit sworn by himself on 16th March, 2016.
The principles the court should consider in granting bail pending appeal were laid down in the case of Jivraj Shah vs Republic [1986] eKLRin which the court held that:
The principle consideration in an application for bail pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interests of justice to grant bail.
If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail will exist.
The main criteria is that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued.”
In the present case, the Applicant has raised weighty grounds of appeal in his Petition of Appeal filed on 27th January, 2016. The main grounds are that the prosecution did not discharge its burden of proof in establishing that the Applicant caused grievous harm to the complainant and that given the circumstances of the case, the sentence was excessive. He had been charged with causing grievous harm contrary to Section 234 of the Penal Code. It was alleged that on 27th December, 2010 at Mathare 4A in Nairobi within Nairobi Area Province jointly with another not before the court unlawfully did grievous harm to Pamela Atieno. A look at the evidence adduced before this court, prima facie, demonstrates that the Applicant has not raised frivolous grounds of appeal. In that regard, it is the view of the court that the application is merited. On other grounds on which the application is premised, this court does not think they warrant the Applicant to be released on bail pending appeal.
In the result, I allow the application with an order that the Applicant shall pay a cash bail of Kshs.30,000/= or deposit a bond of Kshs. 100,00/= with one surety of a similar amount to be assessed by the Deputy Registrar of this court. It is so ordered.
DATED and DELIVERED this 31stday of MARCH, 2016
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
Mr. Ruto for the Applicant
Ms. Lango holding brief for Ms. Aluda for the Respondent.