[2013] KEHC 1317 (KLR)
The court found that the appellant had raised substantial points of law in her appeal, specifically regarding the sufficiency of evidence and the failure to conduct a voire dire examination on a child witness. Given the state's concession and the legal principles established in the cited Court of Appeal decisions,...
Source-derived case information.
- Citation
- [2013] KEHC 1317 (KLR)
- Parties
- Appellant: Joyce Nyambura Kariuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 472 of 2012
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Legal Topics
- Bail Pending Appeal, Sexual Offences, Conviction Appeal
- 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
Joyce Nyambura Kariuki
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the appellant should be granted bail pending the hearing of her appeal against conviction and sentence.
- 2 Whether the appeal has overwhelming chances of success justifying release on bail.
Ratio Decidendi
The court found that the appellant had raised substantial points of law in her appeal, specifically regarding the sufficiency of evidence and the failure to conduct a voire dire examination on a child witness. Given the state's concession and the legal principles established in the cited Court of Appeal decisions, the court held that the circumstances justified granting bail pending appeal. The court determined that suppressing the appellant's liberty would be unwise when there is a substantial likelihood of success on appeal.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The appellant is granted bail pending the hearing of her appeal.
- The appellant is released on a bond of Kshs. 100,000 with a surety of a similar amount.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPEAL NO. 472 OF 2012
JOYCE NYAMBURA KARIUKI…………………………………………………………APPELLANT
-VERSUS-
REPUBLIC…………………………………………………………………………………..REPONDENT
RULING
This ruling is on a Notice of Motion dated 10th September, 2013 brought under Section 357(1) of the Criminal Procedure Code, Chapter 75 Laws of Kenya. The Motion seeks to have the Appellant admitted to bail pending the hearing of her appeal against the conviction and sentence meted out against her by the learned magistrate in Murang’a Chief Magistrates’ Court Sexual Offence Case No. 12 of 2011.
In the criminal case whose judgment the Appellant seeks to impugn, the Appellant was charged with the offence of attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act, No. 3 of 2006. According to the particulars of the offence, on the 31st July, 2011 in Murang’a within Central Province, the Appellant unlawfully caused her vagina to be penetrated by the penis of CG, a child aged 16 years.
The Appellant argues that the Appeal is not only arguable but it also has overwhelming chances of success. Her counsel submitted that there was no evidence to support the offence with which the Appellant was charged. He also argued that a voire dire examination ought to have been subjected to the only independent witness who was a child of tender years. The state has conceded these arguments and in its view, the appeal is likely to succeed on those grounds.
In the Court of Appeal decision of Dominic Karanja versus Republic (1986) KLR at page 612,it was held that where an appeal has overwhelming chances of success, there was no justification for depriving the applicant of his liberty.
Again in the Court of Appeal decision of Jivraj Shah versus Republic (1986) KLR 605, the court was also of the view that if it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be urged and that the sentence or substantial part of it will have been served by the time the appeal is heard, then bail should be granted.
It appears to me, at least at this stage of the proceedings, circumstances under which bail pending appeal is usually granted as aptly illustrated by the Court of Appeal in the decisions I have cited obtain in the Appeal herein. It follows therefore that it would be unwise to suppress the appellant’s liberty when she has raised in her appeal a substantial point of law whose determination may very well yield a successful appeal. Accordingly, the Appellant’s application dated 10th September, 2013 is hereby allowed and the Appellant is granted bail pending the hearing of her appeal; she is realised on a bond of Kshs. 100,000 with a surety of a similar amount.
Signedand delivered in open court this 4th day of October, 2013
Ngaah Jairus
JUDGE