[2011] KEHC 1928 (KLR)
The court found that the appeal had overwhelming chances of success, particularly given the nature of the dispute (a family land dispute), the minimal injuries suffered by the complainant, the applicants' status as first offenders, and the unlikelihood of the appeal being heard before the sentence was served. These...
Source-derived case information.
- Citation
- [2011] KEHC 1928 (KLR)
- Parties
- Appellant: John Murimi Kigoru; Appellant: Bernard Miano Ndwiga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 84 & 85 of 2011
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application for bail pending appeal allowed
- Judges
- AO Muchelule
- Legal Topics
- Bail Pending Appeal, Assault Causing Actual Bodily Harm, Sentencing Principles, Evaluation of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Murimi Kigoru
Appellant
Bernard Miano Ndwiga
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success.
- 3 Whether the custodial sentence should be suspended pending appeal.
Ratio Decidendi
The court found that the appeal had overwhelming chances of success, particularly given the nature of the dispute (a family land dispute), the minimal injuries suffered by the complainant, the applicants' status as first offenders, and the unlikelihood of the appeal being heard before the sentence was served. These factors, together with the concession by the State, justified the grant of bail pending appeal. The court therefore admitted each applicant to bail on the condition of depositing KShs. 20,000 to await the hearing of the appeal.
Court Disposition
application for bail pending appeal allowed
Orders
- Each applicant is admitted to bail on the condition that he deposits KShs. 20,000 to await the hearing of the appeal.
- Upon deposit, the applicants will appear before the Deputy Registrar to indicate mention dates.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CRIMINAL APPEALS NOS. 84 & 85 OF 2011
JOHN MURIMI KIGORU.………………...………IST APPELLANT/APPLICANT
BERNARD MIANO NDWIGA…………………..2ND APPELLANT/APPLICANT
VERSUS
REPUBLIC………………………………………………………….RESPONDENT
R U L I N G
The Applicants were on 27th May 2011 jointly convicted by the Resident Magistrate’s court at Wanguru of assault causing actual bodily harm contrary to Section 251 of the Criminal Procedure Code and were each sentenced to serve 12 months in jail. The particulars of the charge were that on 27th day of July 2010 at Thiba Village in Kirinyaga South District of the Central province, they jointly assaulted Patrick Kithaka Chobi and occasioned him actual body harm. They were aggrieved by the conviction and sentence and have appealed to this court. In the meantime, they each seek to be released on bail pending the appeal. The two applications were consolidated.
The brief facts on which the applicants were convicted were that on 27th July 2010 at 8. 00 a.m. the complainant was preparing his 2 acre rice holding No. 2165B to plant when the 2nd Applicant came with seedlings wanting to plant 1 acre of this holding. He claimed the acre had been leased to him by the complainant’s brother Benson Wanjohi Cubi. An argument ensured between them. The 1st Applicant came and the two held and beat up the complainant and injured him. Each Applicant denied this in sworn statement. Their case was that Benson had leased 1 acre of this holding to the 1st Applicant. On this day the 1st Applicant sent the 2nd Applicant to take the seedlings to the holding where he found the complainant who stopped the delivery of the seedlings. The 1st Applicant called the 2nd applicant who came. At that point the complainant’s son attacked the 1st Applicant with a stick. The complainant joined in the attack and cut the 1st Applicant with a panga. The Applicants denied that they had assaulted the complainant.
In their respective applications of appeal the applicants complained that they had been convicted on insufficient evidence; that their defence was not considered; and that the sentence meted out was manifestly excessive. During the application, their counsel Mr. Muriithi submitted that the appeal had overwhelming chances of success. He relied on various decisions, including JIVRAJ SHAH VS REPUBLIC [1986] KLR 605 and ADEMBA VS REPUBLIC [1983] KLR 442, to urge that his clients were entitled to bail. Mr. Wohoro for the State did not oppose the application. He conceded that the appeal had good chances of success. Mr. Muriithi further pointed out that, given the court’s diary, it was unlikely that the appeal was going to be heard before the sentence had been served.
This was a dispute between brothers concerning the rice holding in question. It spilled over the applicants who came to plant on the same holding. It is also notable that the medical evidence shows the complainant suffered only bruises on the left mid tibia joint. The applicants were first offenders and each has a family.
It will be up to the court hearing the appeal to determine whether the conviction was safe and the sentence merited. My impression on the matter, however, is that the appeal has overwhelming chances of success. At the very least, the custodial sentence may not be allowed to stand. This will be sufficient to allow the application.
Each Applicant is admitted to bail on the condition that he deposits KShs.20,000/= to await the hearing of this appeal. Upon the deposit they will appear before the Deputy Registrar to indicate mention dates.
DATED, DELIVERED AND SIGNED AT EMBU THIS 28th DAY OF JULY 2011.
A.O. MUCHELULE
JUDGE