[2011] KEHC 1425 (KLR)
The court found that while family hardship alone does not justify bail pending appeal, the applicant's status as an orphan and the lack of care for her young child are relevant considerations. Upon reviewing the lower court's proceedings, judgment, and grounds of appeal, the court was persuaded that the appeal,...
Source-derived case information.
- Citation
- [2011] KEHC 1425 (KLR)
- Parties
- Appellant: Joanina Kathure; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 107 of 2011
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- AM Cockar
- Legal Topics
- Bail Pending Appeal, Sentencing Discretion, Assault Causing Actual Bodily Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joanina Kathure
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the trial court erred in failing to consider a probation officer's report before sentencing.
- 3 Whether the trial court wrongfully denied the applicant an option of a fine based on her financial status.
Ratio Decidendi
The court found that while family hardship alone does not justify bail pending appeal, the applicant's status as an orphan and the lack of care for her young child are relevant considerations. Upon reviewing the lower court's proceedings, judgment, and grounds of appeal, the court was persuaded that the appeal, especially against sentence, was likely to succeed. Consequently, the court exercised its discretion to grant bail pending appeal, subject to bond terms.
Court Disposition
Application for bail pending appeal allowed.
Orders
- Applicant granted bond of Ksh.20,000 with one surety of like sum to be approved by the Deputy Registrar.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
HCCRA NO. 107 OF 2011
LESIIT J.
JOANINA KATHURE.....................................................................................APPELLANT
VERSUS
REPUBLIC..................................................................................................RESPONDENT
(From the original conviction and sentence of MAUA Senior Resident Magistrate Hon. Mr. R Mukungu)
RULING
The applicant JOANINA KATHURE was convicted by Maua Court for two counts of assault causing actual bodily harm contrary to section 251 of the PC she was sentenced to 2 years imprisonment in each count. She had filed her appeal and simultaneously Notice of Motion seeking bail pending the hearing and determination of the appeal.
The grounds for the application are cited on the face of the application as follows:-
(a)The appellant/applicant has lodged an appeal that has extremely good chances of success.
(b)The appellant/applicant is serving a two year jail term.
(c)The trial court erred is failing to call for a probation officers report before sentencing the appellant/applicant.
(d)The trial court wrongfully exercised its discretion in failing to give the appellant/applicant an option of a fine on the extraneous grounds that the appellant/applicant is poor woman.
(e)Appellant/applicant is not a flight risk.
(f)The appellant/applicants appeal wound be rendered nugatory if she is not admitted to bail.
Mr. Mbogo urged the application on behalf of the applicant.He urged that he was relying on the supporting affidavit and grounds on face of the application counsel urged that the learned trial magistrate indicated that she would not give the applicant an option of jail because she is too poor.
Mr. Mbogo submitted that the appellant was an orphan.That her child of 6 years was left in the case of a good Samaritan.
Mr. Kariuki learned counsel for the state does not oppose the application.Counsel urged that the conviction was lawful. However, we urged that the state was not opposed to the applicant being granted bail.
I have considered the application.The hardships of the family of an applicant is not par-se a good ground to grant bail pending appeal. However, the fact applicant is an orphan, that her child was left in the streets with no family to take care of her is a matter the court should consider along other grounds.
I have considered the proceedings and judgment of the lower court against the grounds of appeal, the affidavit in support of the application together with submissions by the advocate for the applicant and the state.I am of the view that the applicants appeal especially against sentence is likely to succeed. For these reasons I will allow the application and grant the applicant bond of Ksh.20,000/- with one surety of like sum to be approved by the Deputy Registrar of this court.
Dated signed and delivered this 28th day of July 2011.
LESIIT, J
JUDGE