[2010] KEHC 2069 (KLR)
The court found that the applicant had accounted for all the moneys received and that a central prosecution witness was not called, leading to an inference adverse to the prosecution. The burden of proof appeared to have been improperly shifted to the accused, contrary to established criminal law principles. The...
Source-derived case information.
- Citation
- [2010] KEHC 2069 (KLR)
- Parties
- Appellant: Joshua Komen Rotich; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 58 of 2010
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Legal Topics
- Bail Pending Appeal, Burden of Proof, Defective Charge Sheet
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Komen Rotich
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail or bond pending appeal.
- 2 Whether the appeal has overwhelming chances of success.
- 3 Whether the burden of proof was improperly shifted to the accused.
Ratio Decidendi
The court found that the applicant had accounted for all the moneys received and that a central prosecution witness was not called, leading to an inference adverse to the prosecution. The burden of proof appeared to have been improperly shifted to the accused, contrary to established criminal law principles. The sentence imposed was the maximum allowable, which is not the norm in criminal justice. Given these factors, the court was persuaded that the appeal had overwhelming chances of success and that it would serve no useful purpose to refuse bail or bond only for the appellant to be released on appeal. Accordingly, the applicant was admitted to bond pending appeal.
Court Disposition
Application for bail pending appeal allowed.
Orders
- Applicant admitted to bond pending appeal.
- Applicant to be released on a bail of Kshs. 60,000 with a surety of similar amount.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Criminal Appeal 58 of 2010
JOSHUA KOMEN ROTICH...........................................................APPELLANT
VERSUS
REPUBLIC...................................................................................RESPONDENT
R U L I N G
Before court is an application by way of a Notice of Motion stated to be brought under section 357 of the Criminal Procedure Code cap.75 laws of Kenya. It prays that the Applicant be admitted to bail/bond pending appeal. It is brought on the grounds that the appeal has overwhelming chances of success and the Applicant has a very young family, that he is the sole bread winner for. The grounds of appeal are that the charge was incurably defective for charging the Applicant with obtaining on diverse dates, that it was wrong in law to convict an agent for the acts of the principal, that no intention to defraud was established and that the defence evidence as a whole was not considered and finally that the Applicant was handed the maximum sentence for an offence he did not commit.
The state did not oppose the application for the Applicant to be admitted to bail/bond.
I have carefully perused the proceedings and judgment of the trial court and it is clear therefrom that the Appellant accounted to the principal for all the moneys he received. A central witness was not called by the prosecution and the inference to be drawn therefrom is that his evidence would have weakened the prosecution case. The burden of proof appears to have been shifted to the accused and that has no basis in criminal justice. The sentence meted out was the maximum allowable again a principle not the norm in criminal justice. I am in these circumstances fully persuaded that the appeal herein has overwhelming chances of success and in which case it would serve no useful purpose to refuse bail/bond only for the Appellant to be released on appeal. Having so found I hereby admit the Applicant to bond pending appeal. He will be released on a bail of Kshs.60, 000/= with a surety of similar amount.
Orders accordingly.
DATED SIGNED AND DELIVERED AT ELDORET THIS 16TH DAY OF JUNE 2010.
P.M.MWILU
JUDGE
IN THE PRESENCE OF
Gumbo H/B Nyarotso– Advocate for Appellant/Applicant
Mr. Kabaka- Advocate for state
Andrew Omwenga- Court Clerk
P.M.MWILU
JUDGE