[2012] KEHC 309 (KLR)
The court found that although the lower court proceedings were not typed and thus the merits of the appeal could not be fully assessed, the applicant's advanced age (73 years), status as a first offender, and the fact that the offence was a misdemeanour carrying a maximum sentence of three years justified the grant...
Source-derived case information.
- Citation
- [2012] KEHC 309 (KLR)
- Parties
- Appellant: Joseph Mathaiya Mwai; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 230 of 2012
- Procedural Posture
- Criminal Appeal / Application for Bond Pending Appeal
- Outcome
- Application for bond pending appeal allowed.
- Legal Topics
- Bail Pending Appeal, Misdemeanour Sentencing, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mathaiya Mwai
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bond Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bond pending appeal.
- 2 Whether the applicant's age, health, and status as a first offender justify a non-custodial sentence.
- 3 Whether the appeal has high chances of success.
Ratio Decidendi
The court found that although the lower court proceedings were not typed and thus the merits of the appeal could not be fully assessed, the applicant's advanced age (73 years), status as a first offender, and the fact that the offence was a misdemeanour carrying a maximum sentence of three years justified the grant of bond pending appeal. The court noted that a non-custodial sentence could have been considered and that the applicant had demonstrated compliance with previous bond terms. Therefore, the applicant was deserving of release on cash bail pending the determination of his appeal.
Court Disposition
Application for bond pending appeal allowed.
Orders
- The applicant may be released on cash bail of Kshs.50,000/-.
- The applicant must attend court as required, failing which the cash bail will be forfeited to the state.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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JOSEPH MATHAIYA MWAI………………………APPELLANT
VERSUS
REPUBLIC……………………………………...…..RESPONDENT
RULING
Joseph Mathaiya Mwai, the applicant herein was charged with the offence of stealing contrary to Section 275 of the Penal Code and in the alternative, handling stolen goods contrary to Section 322(2) of the Penal Code. He was convicted by Nyahururu court on 28/11/2012, and was sentenced to serve one year imprisonment without the option of fine. He has moved this court by application dated 19/12/2012, seeking to be released on bond pending appeal.
The applicant has filed an appeal dated 19/12/2012 and claims that the appeal has high chances of success because the evidence on record did not support the conviction; his alibi was not displaced; he is 73 years old, sickly and considering the fact that the offence is a misdemeanour, he should have been considered for a non custodial sentence. He also claims to have been on bond for over a year during the pendency of the trial and he attended court without fail and will do so if released on bond.
The proceedings of the lower court were exhibited but are not typed and I was not able to read them to establish whether or not the appeal has high chances of success. However, bearing in mind that the offence is a misdemeanour, carries a maximum sentence of three years imprisonment, the applicant was treated as a first offender, he is an old man aged about 73 years, a non custodial sentence should have been considered. I do note that the trial magistrate considered the fact that the offence is rampant in the area but a severe non custodial sentence could have been considered. In the end, I am persuaded that the applicant is deserving of the order sought. The applicant may be released on cash bail of Kshs.50,000/-. He must attend court as required by the court otherwise the cash bail will be forfeited to the state. It is so ordered.
DATED and DELIVERED this 20th day of December, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Wahome Ndegwa for the appellant
The appellant present
Mr. Marete for the State
Kennedy – Court Clerk