[2011] KEHC 4013 (KLR)
The court found that the applicant had been on bond during the trial and had not absconded, with the recognizance still lodged in court. The respondent did not oppose the application. Given the delay in hearing the appeal and the applicant's compliance with previous bond terms, the court exercised its discretion to...
Source-derived case information.
- Citation
- [2011] KEHC 4013 (KLR)
- Parties
- Appellant: Jesse Mantua Karuma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 439 of 2010
- Procedural Posture
- Criminal Appeal / Application for Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- JB Ojwang
- Legal Topics
- Bail Pending Appeal, Recognizance, Bond Terms, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jesse Mantua Karuma
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending the hearing and determination of his appeal.
- 2 Whether the recognizance lodged in the trial court can be retained as security for bail pending appeal.
Ratio Decidendi
The court found that the applicant had been on bond during the trial and had not absconded, with the recognizance still lodged in court. The respondent did not oppose the application. Given the delay in hearing the appeal and the applicant's compliance with previous bond terms, the court exercised its discretion to grant bail pending appeal, ordering the applicant's release on the same bond terms as set by the trial court.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The applicant shall be released forthwith on bond.
- The bond ordered and secured by the trial court in Criminal Case No. 3381 of 2008 shall be retained as the basis for release.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
(Coram: Ojwang, J.)
CRIMINAL APPEAL NO. 439 OF 2010
JESSE MANTUA KARUMA...................................................................APPELLANT/APPLICANT
- VERSUS -
REPUBLIC.....................................................................................................................RESPONDENT
RULING
The appellant moved this Court by Notice of Motion dated 14th October, 2010 and brought under s. 357 of the Criminal Procedure Code (Cap. 75, Laws of Kenya). The application carries one substantive prayer:
that this Court be pleased to make an order releasing the appellant/applicant and admitting him to bail, on such terms as the Court may deem just and reasonable.
Learned counsel, Mr. Were, who represented the applicant, based his submissions on his own affidavit sworn on 14th October, 2010 in support of the application.
The applicant was, on 28th September, 2010 convicted in Criminal Case No. 3381 of 2008 at the Court of the Mombasa Senior Principal Magistrate; he was committed to jail for a period of 10 years. Immediately upon sentence being pronounced, the applicant’s counsel then having the conduct of the matter, sought certified copies of the proceedings, for the purpose of lodging an appeal.
The deponent “confirmed from the High Court Criminal Registry that the hearing of the appellant’s appeal will not take place soon”: and so there was a proper basis for seeking bond pending appeal __ a case that was all the stronger, as “the appellant was granted bond in the lower Court and [he] never absconded”. The deponent exhibited lower Court papers showing that the appellant had been granted a Kshs. 200,000/= bond with surety __ and that the recognizance held by the Court in that case remains lodged in Court.
Learned counsel submitted that the applicant’s appeal had been lodged in good time; and that it stood “overwhelming chances of success”.
For the respondent, learned counsel, Mr. Onserio, raised no objection __ especially considering that the applicant had been freed on bond, during the pendency of trial.
I have considered the merits of this case, especially on the basis of its history, and of the submissions made by counsel on both sides. A decisive point favouring the application, is that the appellant had undergone trial while on bond, and by the bond terms, a recognizance had been lodged in Court and still remains lodged there.
I will order as follows:
(1) The applicant shall be released forthwith, on bond.
(2) The bond which had been ordered and secured by the trial Court, in Criminal Case No. 3381 of 2008, shall be retained, and is the basis on which the applicant is now released from custody.
(3) The applicant shall dutifully attend before the Court as may from time to time be required, until the appeal is heard and determined.
Orders accordingly.
DATED and DELIVERED at MOMBASAthis 15th day of February, 2011.
J. B. OJWANG
JUDGE
Coram: Ojwang, J.
Court Clerk: Ibrahim
For the Appellant/Applicant: Mr. Were
For the Respondent: Mr. Onserio