[2011] KEHC 2246 (KLR)
The court found that since the 2nd accused was acquitted and the particulars of the charge did not allege conspiracy with any other person, the appellant could not be convicted of conspiracy alone. The trial court should have acquitted the appellant once the co-accused was acquitted. The court further found that the...
Source-derived case information.
- Citation
- [2011] KEHC 2246 (KLR)
- Parties
- Appellant: Jane Wambui Gakungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 212 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Bail Pending Appeal
- Outcome
- Applicant admitted to bail pending appeal.
- Legal Topics
- Bail Pending Appeal, Conspiracy to Commit Offence, Acquittal Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jane Wambui Gakungu
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal.
- 2 Whether a conviction for conspiracy can stand when all other accused are acquitted and the charge does not allege conspiracy with others.
Ratio Decidendi
The court found that since the 2nd accused was acquitted and the particulars of the charge did not allege conspiracy with any other person, the appellant could not be convicted of conspiracy alone. The trial court should have acquitted the appellant once the co-accused was acquitted. The court further found that the appeal had overwhelming chances of success and, applying the principles for granting bail pending appeal, admitted the appellant to bail pending the hearing and determination of her appeal.
Court Disposition
Applicant admitted to bail pending appeal.
Orders
- The applicant is admitted to bail pending appeal.
- The applicant shall deposit cash bail of KShs. 50,000 to await the hearing and determination of her appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CRIMINAL DIVISION
MISCELLANEOUS APPLICATION NO. 212 OF 2011
JANE WAMBUI GAKUNGU.......................................................................................APPELLANT
V E R S U S
REPUBLIC.................................................................................................................RESPONDENT
R U L I N G
My provisional view of the matter is that the appeal filed by the Applicant against conviction and sentence has overwhelming chances of success. The Applicant was the 1st accused. Together with the 2nd accused, they were charged with conspiracy to kill under section 224 of the Penal Code whose particulars were that on diverse dates between April and November 2008 at City Centre in Nairobi they jointly conspired to kill Michael Muraguri Gakungu. Following trial, the 2nd accused was found not guilty and was acquitted. The trial court specifically found her (2nd accused) not to have been party to any conspiracy.
One cannot conspire alone. The particulars of the charge did not allege that the offence was committed by the two accused jointly with other people, known or unknown. Once the 2nd accused was acquitted it was incumbent upon the court to acquit the Applicant.
Mr. Kanyi made reference to Archibold Criminal Pleading, Evidence And Practice 39th Edition at page 365 in which the writer at paragraph 615 states:-
“And if, upon an indictment for a conspiracy, the jury acquit all the defendants but one, they must acquit that one also, unless it is charged in the indictment, and proved, that he conspired with some other person not tried upon that indictment.”
I am mindful of the principles governing the grant of bail pending appeal as enunciated in various decisions, including Mundia –Vs- Republic [1984] KLR 623.
I admit the Applicant to bail. She will deposit cash bail of KShs. 50,000/= to await the hearing and determination of her appeal.
DATED AND DELIVERED AT NAIROBITHIS 29TH DAY OF APRIL 2011
A.O. MUCHELULE
J U D G E