[2006] KEHC 1137 (KLR)
The court found that the appellant's appeal had overwhelming chances of success because the charge as framed was defective, did not disclose an offence, and the plea was not properly taken in accordance with established legal procedure. The respondent conceded these points. Consequently, the court exercised its...
Source-derived case information.
- Citation
- [2006] KEHC 1137 (KLR)
- Parties
- Appellant: Imran Mallu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 195 of 2006
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- DK Musinga
- Legal Topics
- Bail Pending Appeal, Defective Charge, Plea Procedure, Possession of Narcotics
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Imran Mallu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal.
- 2 Whether the charge as framed before the trial court was defective and disclosed an offence.
- 3 Whether the plea was properly taken in accordance with legal requirements.
Ratio Decidendi
The court found that the appellant's appeal had overwhelming chances of success because the charge as framed was defective, did not disclose an offence, and the plea was not properly taken in accordance with established legal procedure. The respondent conceded these points. Consequently, the court exercised its discretion to grant bail pending appeal, finding that the interests of justice warranted the appellant's release on bail while the appeal was pending.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The appellant is released on a cash bail of Kshs.10,000 pending the hearing and determination of his appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU
Criminal Appeal 195 of 2006
(From original conviction and sentence in Criminal Case No.2041 of 2005 of the Principal
Magistrate’s Court at Naivasha – J.G. KINGORI, P.M.)
IMRAN MALLU……………………...........................................................……………APPELLANT
VERSUS
REPUBLIC………………….…….….......................................................…………RESPONDENT
RULING
The appellant was charged for being in possession of cannabis sativa contrary to Section 3(1) as read with Section 3(2) of the Narcotic Drugs and Psychotropic Substances Control Act No.4 of 1994. The particulars of the offence were that the on the 14th August 2006 at Tamu Tamu area in Gilgil within Nakuru District the appellant and his accomplice were found in possession of one roll of 20/- without a medical subscription or authority under the regulation of the said Act.
The appellant and his accomplice pleaded guilty to the said charge and were duly convicted and sentenced to 18 months imprisonment. Being aggrieved by the said conviction and sentence the appellant preferred an appeal to this court against both the conviction and the sentence. The appellant also filed an application by way of notice of motion under the provisions of Section 356(1) and 375 of the Criminal Procedure Code. He urged the court to admit him to bail pending the determination of this appeal. The application was supported by an affidavit sworn by his advocate, Achieng Owour.
In his submissions, Mr. Ndubi who held brief for the appellant’s advocate urged the court to take cognisance of the fact that the charge as framed before the trial court was defective and did not disclose any offence. He further submitted that the plea was not taken in the proper manner as was laid down by the Court of Appeal in ADAN VS R [1973] EA Pg 445. He further submitted that the facts of the case as read out to the trial court could not sustain a conviction. He urged the court to find that the appellant had a meritorious appeal with overwhelming chances of success.
Mr. Gumo, Assistant Deputy Public Prosecutor, did not oppose the appellant’s application. He conceded, and in my view rightly so, that for the reasons stated by Mr. Ndubi, the appeal had overwhelming chances of success.
In the circumstances, I allow the appellant’s application and order that he be released on a cash bail of Kshs.10,000/- pending the hearing and determination of his appeal.
DATED, SIGNED and DELIVERED at Nakuru this 5th day of October, 2006.
D. MUSINGA
JUDGE
Ruling delivered in open court in the presence of Mr. Gumo, Assistant Deputy Public Prosecutor for the state and N/A for the applicant.
D. MUSINGA
JUDGE