[2012] KEHC 5130 (KLR)
The court held that the applicant failed to demonstrate that the appeal had overwhelming chances of success, which is the primary consideration for granting bail pending appeal. The arguments regarding the shortness of the sentence, weather conditions, and the speed of the other vehicle did not establish any...
Source-derived case information.
- Citation
- [2012] KEHC 5130 (KLR)
- Parties
- Appellant: Jonnes Mumo Mutie; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 149 of 2011
- Procedural Posture
- Criminal Appeal / Application for Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- GMA Dulu
- Legal Topics
- Bail Pending Appeal, Sentencing, Traffic Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Jonnes Mumo Mutie
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success.
Ratio Decidendi
The court held that the applicant failed to demonstrate that the appeal had overwhelming chances of success, which is the primary consideration for granting bail pending appeal. The arguments regarding the shortness of the sentence, weather conditions, and the speed of the other vehicle did not establish any exceptional or unusual circumstances in favour of the applicant. The court found that the sentence was legal and that the factual matters raised were not sufficient to warrant bail pending appeal. Consequently, the application was dismissed, but the court ordered that the appeal be fixed for hearing on a priority basis.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
- The appeal is to be fixed for hearing on a priority basis.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CRIMINAL APPEAL NO. 149 OF 2011
JONNES MUMO MUTIE ……………………….......................……… APPELLANT/APPLICANT
VERSUS
REPUBLIC …………………………………...............…………………….………. RESPONDENT
(Being an appeal from the judgment and conviction of Mr S.M. Mungai SPM delivered on 21/07/2011 in Machakos Traffic Case No. 10 of 2010)
R U L I N G
Before me is an application by way of Chamber Summons dated 16th August 2011. It was filed under Section 357 of the Criminal Procedure Code (Cap 75 Laws of Kenya). It is an application seeking that the Applicant be released on bail pending appeal. The application has grounds on the face of the Chamber Summons. It was filed with an affidavit sworn on 16th August 2011 by the Applicant.
Counsel for the Applicant Mr Mulei, also addressed the court in support of the application. Counsel emphasized that the Applicant was sentenced to serve two years imprisonment, which was a short sentence likely to be served before the appeal was heard and determined.
The application is opposed. The State Counsel, Mr Mukofu, submitted that the Applicant was on the wrong side of the road, when the fatal accident occurred, and that two lives were lost. Counsel appreciated that the sentence of two years imprisonment was pronounced in July 2011.
This is an application for bail pending appeal. The primary consideration by the court in such an application is whether the appeal has overwhelming chances of success – see SOMO –VS- REPUBLIC (1972) EA 476.
The Applicant’s Counsel has emphasized the shortness of sentence, and that it was drizzling at the time of accident and that the driver of the other vehicle (land rover) was driving at high speed. In my view, all three arguments do not assist the Applicant. Shortness of sentence per se is no ground for granting bail pending appeal; as sentence is presumed to be legal. The Applicant has not shown that the sentence imposed is illegal.
On the speed, that is a question of fact. From the record, it appears that the Applicant was on the wrong side of the road. Primarily, he should have been the one to give way. The rain drizzle also meant that all the drivers had to be extra careful as visibility must have been reduced. Nothing unusual in favour of the Applicant has been demonstrated that would give his appeal overwhelming chances of success.
Indeed, the Applicant has filed a petition of appeal. It is an arguable appeal. However, the Applicant has not demonstrated that the appeal has overwhelming chances of success. Therefore, this application for bail pending appeal will fail.
Consequently, I find no merits in the application and dismiss the same. I however order that appeal be fixed for hearing on priority basis.
Dated and delivered at Machakos this 28th day of February2012.
George Dulu
Judge
In presence of:-
Mr Mulei for the Applicant
Mr Mukofu for State
Nyalo – Court clerk.