[2011] KEHC 2964 (KLR)
The court found that there was no conclusive evidence regarding the appellant's age at the time of conviction, as neither the lower court nor the present application provided definitive proof. The court held that the issue of age should have been raised and determined at the trial stage, not at the bail application...
Source-derived case information.
- Citation
- [2011] KEHC 2964 (KLR)
- Parties
- Appellant: J.O.O; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 41 of 2011
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application for bail pending appeal dismissed
- Legal Topics
- Bail Pending Appeal, Defilement Offence, Age Assessment, Sentencing, Conviction Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J.O.O
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant should be granted bail pending appeal.
- 2 Whether the appellant's age at the time of conviction affects the bail application.
- 3 Whether there is sufficient evidence to support the appellant's claim of being underage at conviction.
Ratio Decidendi
The court found that there was no conclusive evidence regarding the appellant's age at the time of conviction, as neither the lower court nor the present application provided definitive proof. The court held that the issue of age should have been raised and determined at the trial stage, not at the bail application stage. The court also noted that the appellant had already served a substantial part of his sentence, but this alone did not warrant the grant of bail pending appeal. The court concluded that the grounds advanced did not meet the threshold for granting bail pending appeal and that the merits of the appeal, including the alleged high chances of success, would be considered at...
Court Disposition
application for bail pending appeal dismissed
Orders
- The application for bail pending appeal is dismissed.
- Counsel for the appellant is granted 7 days to prepare the record of appeal for priority hearing.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 41 OF 2011
(From original conviction and sentence in Adult Criminal Case No.97 of 2006 in the Children’s court at Nakuru – H. M. NYAGA, SRM)
J.O.O.......................................……………….………APPELLANT
VERSUS
REPUBLIC………………………………….………RESPONDENT
RULING
J.O.O was convicted of the offence of defilement under Section 145(1) of the Penal Code and sentenced to 8 years imprisonment on 17/11/06. He has filed an appeal against both the conviction and sentence. The appellant has also filed an undated Notice of Motion, filed in court on 14/2/2011, seeking to be admitted to bail pending appeal and that the sentence be suspended.
In the same application, the applicant had sought to have an age assessment. The same was done at the Nakuru Provincial General Hospital and the doctor assessment the appellant to be at least 18 years of age. The main ground for preferring the appeal is that the appellant was under age at the time of sentence and that appeal has high chances of success. Counsel also urged that the appellant had been on bond and never absconded. It was also submitted that he has already served half of his sentence and is not likely to abscond.
Mr. Omutelema, the Senior Principal State Counsel, opposed the application for reasons that there is overwhelming evidence on record against the appellant. As to the allegation that the appellant was under age at the time of conviction, counsel urged that the medical report indicated that he is at least 18 years.
The main ground for seeking bail is that the appellant was convicted when under age i.e. 18 years. A part from the averments of counsel that the appellant is now 21 years, and the doctor’s assessment that he is at least 18 years, it was not disclosed at the hearing what the appellant’s age is. I find there to be no conclusive evidence on the appellant’s age. Besides that evidence was not availed at the hearing in the lower court otherwise it would have been considered then. It is not a question to be considered at this stage when seeking bail.
It is true that the applicant has already served about 5 years. The court has no idea why this application was not brought soon after the sentence in November 2006 was imposed. I therefore find no reason why the application cannot wait to be determined which issues should be considered on appeal.
As to whether there are high chances of success that is a matter to be considered at the hearing of the appeal.
Having served a substantial part of the sentence, it is my view that after the record of appeal is prepared, the appeal should be admitted to hearing and the court will give a hearing date on priority basis. I decline to allow the appellant bail at this stage and direct that the counsel do have 7 days in which to prepare the record of appeal for the court to give a priority hearing date. The application for bail is dismissed.
DATED and DELIVERED this 25th day of March 2011.
R.P.V. WENDOH
JUDGE
PRESENT:
The appellant present – in person.
Mr. Omwega for the respondent.
Kennedy – Court Clerk.