[2021] KEHC 6971 (KLR)
The court held that the applicant failed to demonstrate exceptional or unusual circumstances justifying bail pending appeal. The grounds advanced by the applicant regarding identification and contradictions in the prosecution's case were contested by the state and could only be properly weighed at the hearing of the...
Source-derived case information.
- Citation
- [2021] KEHC 6971 (KLR)
- Parties
- Appellant: Hillary Kipchirchir Lagat; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 55 of 2020
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application for bail pending appeal dismissed
- Judges
- AM Githinji
- Legal Topics
- Attempted Murder, Bail Pending Appeal, Identification Evidence, Conviction Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hillary Kipchirchir Lagat
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated exceptional or unusual circumstances to warrant bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success to justify release on bail pending appeal.
- 3 Whether the applicant is likely to serve a substantial part of the sentence before the appeal is heard.
Ratio Decidendi
The court held that the applicant failed to demonstrate exceptional or unusual circumstances justifying bail pending appeal. The grounds advanced by the applicant regarding identification and contradictions in the prosecution's case were contested by the state and could only be properly weighed at the hearing of the appeal. The appeal had not yet been admitted to hearing, and the applicant had not shown overwhelming chances of success. The applicant is serving a five-year sentence for two serious offences of attempted murder, and there is a higher risk of absconding if released on bail. No special or extraordinary personal circumstances were presented. Consequently, the application for...
Court Disposition
application for bail pending appeal dismissed
Orders
- The application for bail pending appeal is dismissed.
- The appeal should be processed for admission and hearing as soon as possible.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CRIMINAL APPEAL CASE NO. 55 OF 2020
HILLARY KIPCHIRCHIR.....................APPELLANT
VERSUS
REPUBLIC...........................................RESPONDENT
RULING:
HILLARY KIPCHIRCHIR LAGAT was charged in the lower Court with two counts of attempted murder, contrary to section 220 (a) of the Penal Code.
The particulars of the offence in the first Count are that on the 27th day of December 2015 at Annex Trading Centre in Wareng District of the Uasin Gishu County, the applicant jointly with another before Court unlawfully attempted to cause the death of Peter Kibinge Chege by shooting him with a gun.
The particulars in the second Count are that on the 27th day of December 2015 at Annex Trading center in Wareng District of the Uasin Gishu County, the applicant jointly with another before Court unlawfully attempted to cause the death of Alfayo Otenga Omulando by shooting him with a gun.
The case was heard and both suspects were found guilty on both counts, and on each count, each was sentenced to serve five years imprisonment; sentences to run concurrently.
The applicant herein dissatisfied with the said conviction and sentence, appealed against both and raised nine grounds of appeal. He as well applied for bond or bail pending appeal of which is the subject of this ruling.
Mr. Miyienda argued the application and averred that the appeal has overwhelming chances of success. The strongest ground of appeal is that the identification of the applicant is absent. When the incident allegedly happened, it was dark. The prosecution case is also riddled with contradictions of which makes it doubtful. The said doubts should have been resolved in favour of the applicant. On the grounds the Court is urged to find the application merited and release the applicant on reasonable bond terms pending hearing of his appeal.
The state opposed the application on the grounds that the appeal is weak and stands no chance of success. The applicant was rightfully convicted.
Identification by PW-3 and PW-4 was proper. The evidence is consistent. As of now the applicant is a convict and had a warrant of arrest issued in the lower Court for missing Court attendance. They urged the Court to dismiss the application and fix the appeal for hearing.
Bail or bond pending appeal must be viewed in a different manner from bond pending trial. For bond pending appeal, the applicant is a convict who is serving a legal sentence until found otherwise by a Court of law, probably on appeal. Different principles for consideration therefore applies as was held in the case of Masrani Vs. Republic (1060) EA321.
In Jiv Raji Shah Vs. Republic (1966) KLR 605, it was held that the applicant must establish existence of exceptional or unusual circumstances upon which the Court can fairly conclude that it is in the interest of justice to grant bail. It must also be shown that the appeal is likely to be successful on account of a substantial point of law to be argued and that the sentence or substantial part of it will have been served by the time the appeal is heard.
In Somo Vs. Republic EALR (1972) 476, it was held that the applicant must establish that there’s an overwhelming probability that the appeal would succeed. The appeal in this regard must have been admitted to hearing as an indication that its not frivolous and vexatious.
Weighing the case at hand, the appeal is yet to be admitted to hearing. The grounds alleged by the applicant that they demonstrate his appeal have overwhelming chances of success, are challenged by the state prosecutor and their real weight can only be ascertain in the hearing of the appeal. The grounds are not obvious or outright which at this point fails to establish that the applicant has overwhelming chances of success. He is serving a 5 years jail sentence from 20/11/2020. Our appeal diary is not far and the appeal can conveniently be heard before he has served a substantial part of the sentence. The applicant who’s no longer a suspect but a convict who received a substantial sentence, the temptation to abscond if released on bond is higher than it was at the lower Court. He was convicted of two serious offences of attempted murder; there are no special or extraordinary personal circumstances availed showing a good case as to why he deserves bond or bail pending hearing and determination of the appeal. I therefore find the application void of merit and is dismissed.
The appeal should be processed for admission and hearing soonest possible.
S. M GITHINJI
JUDGE
DATED, SIGNEDandDELIVEREDatELDORETthis6thday of May, 2021
In the presence of:-
Mr. Miyienda for the accused person
Corazone Muhonja for the state
Gladys - Court assistant