[2015] KEHC 4205 (KLR)
The appeal was allowed because the state conceded to the appeal, indicating that there was no legal basis to uphold the conviction and sentence for grievous harm. The court found that, in light of the concession and the appellant's arguments regarding his constitutional rights and entitlement to bail, there was no...
Source-derived case information.
- Citation
- [2015] KEHC 4205 (KLR)
- Parties
- Appellant: Benard Omwata Toel; Appellant: Japhet Ayienda Toel; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 239 & 240 of 2012
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Grievous Harm, Right to Bail, Constitutional Rights, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Omwata Toel
Appellant
Japhet Ayienda Toel
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was lawfully convicted for grievous harm contrary to section 234 of the Penal Code.
- 2 Whether the appellant is entitled to bail or bond pending the determination of the appeal.
- 3 Whether the appellant's constitutional rights under Articles 49 and 50 of the Constitution of Kenya 2010 were upheld.
Ratio Decidendi
The appeal was allowed because the state conceded to the appeal, indicating that there was no legal basis to uphold the conviction and sentence for grievous harm. The court found that, in light of the concession and the appellant's arguments regarding his constitutional rights and entitlement to bail, there was no justification to continue holding the appellant. The court therefore ordered the immediate release of the appellant unless otherwise lawfully held. The decision was grounded on the state's concession, the absence of opposition, and the constitutional guarantees of fair trial and bail.
Court Disposition
appeal_allowed
Orders
- The appellant is set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL APPEAL NO. 239 & 240 OF 2012
JAPHET AYIENDA TOEL………..1ST APPELANT
BENARD MWATA TOEL……….2ND APPELANT
VERSUS
REPUBLIC…………….…………..RESPONDENT
JUDGMENT
This is a criminal appeal by Benard Omwata Toel, the appellant herein. He was charged for grievous harm contrary to section 234 of the penal Code. The particulars were that on the 10th day of November, 2014 at Riabigutu sublocation in Masaba South District within Kisii County, jointly unlawfully did grievous harm to Evaline Sigara Nyapuku.
He pleaded not guilty to the charge. The appellant’s trial proceeded in Keroka, in Senior Resident Magistrate’s court. The appellant was convicted and sentenced to 6 years imprisonment. He now appeals. He has filed his six grounds of appeal: These are:
I the appellant to be released on bond or bail on reasonable conditions pending the hearing and determination of this case.
A determination that I the applicant I am entitled to this constitution of Kenya.
Any further orders and or direction the honouralbe court considered a propeviate in the affidavit of JAPHET AYIENDA TOEL and on the following grounds:-
I he applicant I am entitled to secure protection of the law as provided under article 49 and 50 of this constitution of Kenya 2010.
I the applicant I am entitled to my rights and article 49(10h of the constitution of Kenya 2010.
I the accused I have a permanent home within the jurisdiction of this honourable court and I would not abscond.
I the accused shall not interfere in any way with investigation of this case.
That there is no special and or peculiar circumstances that bar the accused from being granted bail.
However, on 2nd March, 2015, the state conceded to the appellant’s appeal. The state counsel, Ms Clare, said she had express instructions from her senior, Mr. Imbali, to concede this appeal.
Accordingly, the appellant herein is set at liberty forthwith, unless otherwise lawfully held.
It is so ordered.
Dated and delivered at KISII this 20th day of March, 2015.
C.B. NAGILLAH,
JUDGE.
In the presence of:-
Appellants in person.
(absent) for the respondent
Edwin Mongare Court Clerk.