[2016] KEHC 4486 (KLR)
The court found that the appeal raised substantial and non-frivolous issues, particularly regarding the authority of PW2 to issue and extend the pass of absence from work, and whether it was the applicant's duty to disprove PW2's mandate. The court also considered that the short period of imprisonment could result...
Source-derived case information.
- Citation
- [2016] KEHC 4486 (KLR)
- Parties
- Applicant: Hussein Adan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 142 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Bail Pending Appeal
- Outcome
- application allowed
- Legal Topics
- Bail Pending Appeal, Burden of Proof, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hussein Adan
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant should be granted bail pending appeal.
- 2 Whether the issue of the authority of PW2 to issue the pass raises a substantial question for appeal.
- 3 Whether the applicant would serve the sentence before the appeal is heard if bail is denied.
Ratio Decidendi
The court found that the appeal raised substantial and non-frivolous issues, particularly regarding the authority of PW2 to issue and extend the pass of absence from work, and whether it was the applicant's duty to disprove PW2's mandate. The court also considered that the short period of imprisonment could result in the applicant serving the entire sentence before the appeal is heard. On these grounds, the court determined that the application for bail pending appeal should be allowed.
Court Disposition
application allowed
Orders
- Applicant admitted to bail pending appeal on cash bail of Kshs. 50,000 or surety bond of Kshs. 100,000 to be assessed by the Deputy Registrar.
- Appellant to serve the record of appeal within 7 days.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
MISC. CRIMINAL APPLICATION NO. 142 OF 2016
HUSSEIN ADAN…………………….….………………………APPLICANT
Versus
REPUBLIC ……………………………….………………..…RESPONDENT
RULING
After hearing the respective submissions, I find that this is an application that should succeed.
First, on the success of the appeal, a weighty issue regarding whether or not the person who issued the Applicant with the pass of absence from work, namely Warrant officer Wekesa, cannot be wished away as frivolous. Second, PW2 the said warrant officer Wekesa admitted that he indeed issued the pass to the Applicant and further extended it. The question on appeal will be whether it was the duty of the Applicant to disprove the mandate of PW2 in issuing the pass. This aspect cannot also be said to be a frivolous point to be urged on appeal.
On these two grounds, I think that the appeal has a high chance of success.
Three, having made the above observation, it follows that given the short period of imprisonment, if the application is not granted, the applicant is likely to have served the entire punishment before the appeal is heard and determined.
In the end, the application is allowed. I admit the applicant to bail pending appeal. He shall pay a cash bail of Kshs. 50,000/= or deposit a surety bond of Kshs. 100,000/= to be assessed by the Deputy Registrar of this court.
I further order that the Appellant do serve the record of appeal within the next 7 days. He shall thereafter, within 14 days, cause the appeal to be admitted and the appeal be fixed for hearing within 30 days. The Deputy Registrar to fast track the file.
DATED and DELIVERED in Nairobi this 24thday of May, 2016.
G.W. NGENYE-MACHARIA
JUDGE