[2018] KEHC 3862 (KLR)
The court held that since there was no application for stay of the release of the fines and penalties deposited by the appellants, and no order of stay had been issued, there was no justifiable reason to continue holding the monies. The mere fact that the state had filed an appeal against the discharge of the...
Source-derived case information.
- Citation
- [2018] KEHC 3862 (KLR)
- Parties
- Appellant: John Mwangi Maina; Appellant: Martin K. Wamwea; Appellant: Simon Wachira Kagiri; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 78 of 2016
- Procedural Posture
- Criminal Appeal / Ruling on Application for Release of Fines and Penalties After Discharge, Pending Appeal by State
- Outcome
- Application for release of fines and penalties allowed.
- Legal Topics
- Release of Fines, Discharge of Accused, Pending Appeal, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mwangi Maina
Appellant
Martin K. Wamwea
Appellant
Simon Wachira Kagiri
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Release of Fines and Penalties After Discharge, Pending Appeal by State
Legal Issues
- 1 Whether the fines and penalties deposited by the appellants should be released to them following their discharge.
- 2 Whether the absence of a stay application or order justifies continued holding of the monies.
Ratio Decidendi
The court held that since there was no application for stay of the release of the fines and penalties deposited by the appellants, and no order of stay had been issued, there was no justifiable reason to continue holding the monies. The mere fact that the state had filed an appeal against the discharge of the appellants did not, in itself, operate as a stay of execution or justify withholding the funds. The court emphasized that the appellants, having been discharged and with no pending stay, were entitled to the immediate release of the sums paid as fines and penalties. The application for release was therefore allowed.
Court Disposition
Application for release of fines and penalties allowed.
Orders
- The fines and penalties deposited by the appellants are to be released to them.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL NO.78 OF 2016
JOHN MWANGI MAINA....................................................................1ST APPELLANT
MARTIN K.WAMWEA......................................................................2ND APPELLANT
SIMON WACHIRA KAGIRI.............................................................3RD APPELLANT
VERSUS
REPUBLIC...............................................................................................RESPONDENT
R U L I N G
The only issue before me is whether the fines and the penalties deposited by the appellants herein ought to be released to them following their discharge on the 12th June 2018. In my judgment I made the finding that the prosecution still had the opportunity to bring proper charges against the appellants. No charge has been brought except that the state has filed an appeal.
In sentencing the appellants, the learned trial magistrate had made the following orders: -
i. Each accused is sentenced to pay a fine of Ksh. 400,000/- in default 1-year imprisonment.
ii. In addition, being a mandatory sentence each accused is sentenced to twice the amount lost by the County Government calculated at Kshs. 7,513,924/00 in default to serve 3 years’ imprisonment.
iii. Sentences to run consecutively. Cash bail deposited herein be released to the depositors.
In opposing the application for the release of the fines paid to the appellants Mr. Magoma for the DPP submitted that the office of the DPP had filed an appeal against this court’s judgment discharging the appellants.
Counsel for the appellants were of the view that no application had been made to stay the release of the said monies to the appellants pending the hearing and determination of the appeal.
In the end Mr. Magoma left it to the court.
While the discharge of an accused person does not bar the ODPP from bringing fresh charges against the same accused on the same facts, the accused person is basically free until the moment that ‘sword of Damocles’ lands on him and he is arraigned in court.
There being no application for stay of the release of the monies to the appellants, and there being no orders of stay, there is no justifiable reason to continue holding the said monies. I allow the application for the release of the fines to the appellants.
Dated, delivered and signed at Nyeri in open court this 24th September 2018.
Mumbua T. Matheka
Judge
In the presence of:
C/A Albert
Mr. Ng’ang’a for 1st appellant, also for holding brief for Mr. Nderitu for 2nd appellant,
Ms. Nyakio Munene holding brief for Muchiri was Gathoni for 3rd appellant
Mr. Magoma for the state