[2012] KEHC 2303 (KLR)
The court found that there was doubt as to whether the applicant was positively identified as one of the assailants. Given this uncertainty, the applicant demonstrated that his appeal had high chances of success. The court reaffirmed that the key issue in granting bail pending appeal is the likelihood of the appeal...
Source-derived case information.
- Citation
- [2012] KEHC 2303 (KLR)
- Parties
- Appellant: Hewet Vosena Kesusa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Appeal 160 of 2011
- Procedural Posture
- Miscellaneous Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application for bail pending appeal allowed
- Judges
- A Mshila
- Legal Topics
- Bail Pending Appeal, Identification Evidence, Standard of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hewet Vosena Kesusa
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success based on the identification evidence.
Ratio Decidendi
The court found that there was doubt as to whether the applicant was positively identified as one of the assailants. Given this uncertainty, the applicant demonstrated that his appeal had high chances of success. The court reaffirmed that the key issue in granting bail pending appeal is the likelihood of the appeal succeeding. Since both parties agreed that the identification evidence was not positive and the appeal had overwhelming chances of success, the court allowed the application for bail pending appeal.
Court Disposition
application for bail pending appeal allowed
Orders
- The applicant may be released on bond of Kshs 300,000 with one surety of a similar amount pending the hearing and determination of his appeal.
- The appeal is admitted to hearing at the earliest opportunity before two judges at this station for one hour.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATELDORET
MISCELLANEOUS CRIMINAL APPEAL 160 OF 2011
HEWET VOSENA KESUSA ………......…………………… APPELLANT
=VERSUS=
REPUBLIC ………………………....…………………...... PROSECUTOR
RULING
Hewet Vosena Kesusa, the applicant, has lodged thisMotion on Notice seeking to be released on bail pending the hearing and determination of his appeal. The grounds for the application are that his appeal has overwhelming chances of success; that he is ailing in jail and that he will suffer irreparable loss if he is not released. The application is supported by an affidavit sworn by his counsel, Sylvester O. Madialo, which affidavit elaborates the said grounds.
At the hearing of the application, Ms Chepkurui, learned counsel who represented the applicant, reiterated the above grounds emphasizing that the appellant was not positively identified and his appeal has high chances of succeeding. Mr. Chirchir, Learned Senior State Counsel, conceded the application on the ground that the applicant’s appeal indeed has overwhelming chances of success as his identification as one of the assailants was not positive.
We have considered the application, the supporting affidavit and the submissions of counsel. We have further given due consideration to the record of the Lower Court. Having done so, we indeed entertain doubt as to whether the applicant was positively identified. The applicant has therefore demonstrated that his appeal has high chances of success. It is settled that the important issue to be considered in an application for bail pending appeal is whether the appeal has overwhelming chances of success (See Dominic Karanja =vrs= Republic [1986] K.L.R.612. )
There is therefore no justification for denying the applicant bail pending his appeal. That being our view of the matter, the application dated 1st December, 2011 and lodged on 23rd December, 2011 is allowed in terms of prayer (1) thereof. The applicant may be released on bond of Kshs 300,000/= with one surety of a similar amount pending the hearing and determination of his appeal.
We also admit this appeal to hearing at the earliest opportunity before two judges at this station for one hour. The appellant’s counsel to prepare and serve a record of appeal before then.
Orders accordingly.
DATED AND DELIVERED AT ELDORET THIS ….... 5TH ..... DAY .... OF SEPTEMBER 2012.
F. AZANGALALA
JUDGE
A. MSHILA
JUDGE
Read in the presence of:
F. AZANGALALA
JUDGE