[2018] KEHC 3832 (KLR)
The court held that bail pending appeal is a constitutional right and that the applicant's offence is bailable. The court found the application merited, noting the absence of submissions from the respondent and the applicant's willingness to comply with bail conditions. The court relied on constitutional and...
Source-derived case information.
- Citation
- [2018] KEHC 3832 (KLR)
- Parties
- Appellant: James Karuthiru Wangui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 6 of 2018
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed, subject to filing of Pre-Bail Report.
- Judges
- NA Matheka
- Legal Topics
- Bail Pending Appeal, Dangerous Driving, Right to Bail, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Karuthiru Wangui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending the hearing of his criminal appeal.
- 2 Whether the offence for which the appellant was convicted is bailable under Kenyan law.
Ratio Decidendi
The court held that bail pending appeal is a constitutional right and that the applicant's offence is bailable. The court found the application merited, noting the absence of submissions from the respondent and the applicant's willingness to comply with bail conditions. The court relied on constitutional and statutory provisions, as well as relevant case law, to conclude that the applicant should be granted bail pending the filing of a Pre-Bail Report. The order for bail is conditional upon the preparation and filing of the Pre-Bail Report, after which further orders will be made at the next mention date.
Court Disposition
Application for bail pending appeal allowed, subject to filing of Pre-Bail Report.
Orders
- Application for bail is allowed subject to the filing of a Pre-Bail Report on or before 28th September, 2018.
- This order be served on the County Probation Officer for compliance.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CRIMINAL APPEAL NO.6 OF 2018
JAMES KARUTHIRU WANGUI........APPELLANT/APPLICANT
VERSUS
REPUBLIC....................................................................RESPONDENT
R U L I N G
The application before me is brought under certificate of urgency dated 7th May, 2018 and the Notice of Motion of the same date. The Notice of Motion is brought under article 49(h) of the Constitution of Kenya 2010 and Section 357 of the Criminal Procedure Code.
It seeks orders that the appellant/applicant be released on bond/bail on reasonable conditions pending the hearing of the appeal. It is supported by the affidavit sworn by D.G. Muthee advocate to the effect that the appeal has high chances of success, the applicant/appellant is willing to abide by conditions set by the court, and that the offence for which he was convicted is bailable.
The applicant was found guilty and convicted of three counts of causing death by dangerous driving contrary to section 46 of the Traffic Act Cap 403 Laws of Kenya, and one count of failing to report an accident. He is serving a 5 year term of imprisonment.
The only issue is whether the application is merited.
Directions were given for submissions to be filed on/before 30th June 2018. I have not seen them as I write this ruling.
In Gerald Macharia Githuka -Vs- Republic Criminal Appeal No.119/2004the court said:-
“The cornerstone of the Justice system is that no one will be punished without the benefit of the due process including the right to exhaust the right of appeal incarceration before trial/pending hearing of an appeal cuts against this principle….”
See also Stephen Mwaniki Muriuki -Vs- Republic Nyeri HCCRA 64 of 2017 where this court stated that bail pending appeal is also a constitutional right protected by Article 49 (1) (h) of the Constitution of Kenya 2010.
In this case therefore I make the following order:-
1. That application for bail is allowed subject to the filing of a Pre-Bail Report on or before 28th September, 2018.
2. This order be served on the County Probation Officer for compliance
3. Mention on the 28th September for orders.
Dated, delivered and signed in open court at Nyeri this 20th day of September 2018
Mumbua T. Matheka
Judge
In the presence of: