[2003] KEHC 191 (KLR)
The Court held that the central consideration for granting bail pending appeal is the existence of exceptional circumstances, especially where the appeal has high chances of success. The applicant, having pleaded guilty, being a first offender, expressing remorse, and indicating willingness to compensate the...
Source-derived case information.
- Citation
- [2003] KEHC 191 (KLR)
- Parties
- Applicant: Josphat Mwathu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 426 of 2003
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Legal Topics
- Bail Pending Appeal, Exceptional Circumstances, Severity of Sentence, First Offender
- 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
Josphat Mwathu
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant should be granted bail pending the hearing and determination of his appeal.
- 2 Whether the applicant's appeal presents exceptional circumstances warranting bail.
- 3 Whether the applicant's willingness to compensate the complainant is relevant to the bail application.
Ratio Decidendi
The Court held that the central consideration for granting bail pending appeal is the existence of exceptional circumstances, especially where the appeal has high chances of success. The applicant, having pleaded guilty, being a first offender, expressing remorse, and indicating willingness to compensate the complainant, presented circumstances that could lead to a successful appeal, at least in part, particularly regarding the severity of sentence. The respondent did not oppose the application. The Court found these factors sufficient to grant the applicant bail pending appeal, subject to conditions ensuring his continued availability for the appeal process.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The applicant is granted free bond pending the hearing and determination of his appeal.
- The applicant must report to Kwa Michael Police Post once a week until the appeal is determined.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISCELLANEOUS CRIMINAL APPLICATION NO.426 OF 2003
JOSPHAT MWATHU………………………………………. APPLICANT
VERSUS
REPUBLIC……………………………………………… RESPONDENT
RULING
The applicant herein has applied to this Court to be granted bail/bond pending the hearing and determination of his appeal.
There is also an alternative prayer made by the applicant. It is that if the Court is unable to grant bail, he requests that his appeal be heard instead.
I will deal with the applicant’s alternative prayer first. Several such prayers have come before the High Court in the recent past and the impression has been created that the applicants are calling upon the Court either to grant bail or else they must hear the applicant’s appeals on priority basis. If this is the intention, it is misconceived. An applicant cannot dictate to the Court in this manner. The Court will fix hearings on dates convenient to it and all parties.
With regard to the applicant’s application for bail pending appeal, I note as follows: that he was convicted of the offence of stealing, contrary to section 275 of the Penal Code [Cap.63]; that he pleaded guilty; that he was treated as a first offender; that he was sentenced to 2 years imprisonment; and that he undertakes to abide by conditions laid down by the Court if released on bail pending appeal. I note that the applicant told the trial Court that he is mentally unstable; that he was remorseful; and that he will never repeat the mistake he made.The applicant indicated to this Court at the hearing of his application that he intends to make arrangements to compensate the complainant and that this would be facilitated by his release.
Learned counsel for the respondent, Mr. Monda informed this Court that since the applicant indicated he was ready to compensate the complainant, (counsel) would leave the matter to Court.
The central consideration in an application for bail pending appeal is whether there are exceptional circumstances, giving the appeal high chances of success. Presumably the applicant’s appeal will be against severity of sentence, which may well succeed, whether wholly or in part
The applicant’s application is allowed. He is granted free bond on condition that he reports to the police establishment nearest to his home, i.e. Kwa Michael Police Post, once a week pending the hearing and determination of his appeal, which he has already filed. Mention on 01. 10. 03 for purposes of ascertaining if the applicant is complying with the Court reporting order.
Delivered at Nairobi this 30th day of July, 2003
B.P. KUBO
JUDGE