[2021] KEHC 3018 (KLR)
The court held that the discretion to grant bail pending appeal is exercised sparingly and only where exceptional or unusual circumstances are demonstrated. The applicant failed to show such circumstances or a prima facie likelihood of success on appeal. Consequently, the court found no basis to grant bail pending...
Source-derived case information.
- Citation
- [2021] KEHC 3018 (KLR)
- Parties
- Applicant: Humphrey Thoya Iha; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E019 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- DB Nyakundi
- Legal Topics
- Bail Pending Appeal, Judicial Discretion, Exceptional Circumstances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Humphrey Thoya Iha
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal 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 is likely to be successful or the sentence will have been served before the appeal is heard.
Ratio Decidendi
The court held that the discretion to grant bail pending appeal is exercised sparingly and only where exceptional or unusual circumstances are demonstrated. The applicant failed to show such circumstances or a prima facie likelihood of success on appeal. Consequently, the court found no basis to grant bail pending appeal and dismissed the application.
Court Disposition
application dismissed
Orders
- The notice of motion for bail pending appeal is denied.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
MISC. CRIMINAL APPLICATION NO. E019 OF 2021
HUMPHREY THOYA IHA................................................................APPLICANT
VERSUS
REPUBLIC......................................................................................RESPONDENT
Coram: Hon. Justice R. Nyakundi
Mr. Oyas Advocate for the Applicant
Mr. Mwangi for State
RULING
The notice of motion filed in Court on 3. 6.2021 seeks an order of the Court for the convicted applicant Humphrey Thoya Iha to be released on bail pending appeal. In support of the application is an affidavit sworn by the applicant counsel one Oyas.
At the hearing of the application both counsels were permitted by the Court to make oral submissions.
Determination
It is not in dispute that under Section 356 and 357 of the Criminal Procedure Code the Court has the discretion to consider releasing a convicted person on bail pending appeal. The discretion is buttressed which the Supreme Court of Malawi in Suleiman v R {2004} MLR 398 as exceptional and unusual circumstances. The Court held interalia that:
“The expression exceptional and unusual circumstances, in the context of applications of bail pending appeal, means circumstances where, one the one attend, it appears primafacie that the appeal is likely to be successful or on the other hand where there is a risk that the sentence will have been served by the time the appeal is heard.”
Obviously, bail pending appeal though discretionary is more limited compared with bail under Article 49 (1) (h) of the Constitution for arrested persons likely to be indicted with a criminal charge. The circumstances in the comparative of respondent is also applicable locally as stated in the case of Charles Owanga Ahora v DPP {2015} eKLR, Jiv Raji v R {1966) KLR 605. The principle considerations for granting bail pending appeal stands and remain coalesced within the following context:
(1). Existence of exceptional or unusual circumstances upon which the Court can fairly conclude that it is in the interest of justice to grant bail.
(2). It appears primafacie from the totality of the circumstances 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, then, a condition of granting bail will exist.
As stated in the above cases, for the Court to exercise its discretion in favor of the applicant for bail pending appeal certain conditions must be satisfied by way of dispositions in the affidavit in support of the motion or as the case may be.
In the instant case, the applicant has been unable to show compelling and exceptional circumstances sufficient enough for the grant of bail pending appeal.
Accordingly, the motion is denied.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 14THDAY OF JULY, 2021
..........................
R. NYAKUNDI
JUDGE
In the presence of
1. Mr. Mwangi for DPP
2. The applicant