[2015] KEHC 3166 (KLR)
The court found that the appellant failed to demonstrate that his appeal had overwhelming chances of success, as there was insufficient material on record to support such a finding. The court further held that a convicted person is to be treated differently from an accused awaiting trial, and that the possibility of...
Source-derived case information.
- Citation
- [2015] KEHC 3166 (KLR)
- Parties
- Appellant: Gilbert Khaemba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 148 of 2014
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bond Pending Appeal
- Outcome
- application for bond pending appeal declined
- Legal Topics
- Bail Pending Appeal, Conviction Appeal, Sentencing, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert Khaemba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Bond Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bond pending appeal.
- 2 Whether the appeal has overwhelming chances of success.
- 3 Whether delay in hearing the appeal justifies granting bond pending appeal.
Ratio Decidendi
The court found that the appellant failed to demonstrate that his appeal had overwhelming chances of success, as there was insufficient material on record to support such a finding. The court further held that a convicted person is to be treated differently from an accused awaiting trial, and that the possibility of delay in hearing the appeal, especially where attributable to the appellant, does not constitute a sufficient ground for granting bond pending appeal. Consequently, the application for bond pending appeal was declined.
Court Disposition
application for bond pending appeal declined
Orders
- Application for bond pending appeal is declined.
- Appellant's counsel to prepare the record forthwith for mention in a week's time for admission and fixing of a hearing date.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL CASE NO. 148 OF 2014
[Being an appeal from the judgment of the Bungoma CM’s court [C.L. Yalwala] delivered on 11th December 2014 in CM’S criminal case no. 1894 OF 2010]
GILBERT KHAEMBA …………………...………..………………. ACCUSED
VERSUS
REPUBLIC………...……………………………………………. RESPONDENT
RULING
1. The appellant was charged in CMCC No. 1894 of 2010 with 4 counts namely; impersonating contrary to section 382 of the Penal Code, obtaining money by false presences contrary to section 313 of the Penal Code, making a document without authority contrary to section 257 of the Penal Code, personation contrary to section 382 of the Penal code. He was convicted of count 1, 2 and 3. He was sentenced for 1 year in court 1, 2 years in court 2 and 1 years in count 3. The sentences are to run concurrently.
2. Being aggrieved by the sentence he has appealed against the sentence and conviction.
3. The application before court is bond pending appeal on grounds that appeal has high chances of success, he is likely to loose his job as a teacher, and he may serve the term before the appeal is heard. The state filed grounds of appeal stating that the appeal does not stand any chance of succeeding.
4. I have considered the trial arguments herein. I have also considered the pleadings placed before the court. I am not able to appreciate due to lack of proceedings on record that the appellant indeed has an overwhelming chance of success. A convicted accused has to be marked differently as compared to one awaiting trial. A convicted person has a jail term hanging over his head.
Secondly I do not agree that the appeal may not be argued soon. The judgment was delivered on 11th December 2014, petition of appeal filed on 22. 12. 2014. There is no application to admit the appeal on the part of the appellant. Delay if any would be on the part of the appellant and cannot be a basis for seeking for bond.
In the circumstances I decline to grant the application.
However in the interest of justice I direct that the appellant’s counsel prepares the record forthwith for mention in a week’s time for admission and fixing of a hearing date.
Dated at Bungoma this 26th day of May 2015.
ALI-ARONI
JUDGE.