[2020] KEHC 2801 (KLR)
The court held that the applicant had demonstrated an arguable appeal with good chances of success, particularly on the issues of burden of proof and the harshness of the sentence. The court distinguished the standards for bail pending trial from those for bail pending appeal, emphasizing that bail after conviction...
Source-derived case information.
- Citation
- [2020] KEHC 2801 (KLR)
- Parties
- Applicant: Julius Kipsang; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 208 of 2019
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- DO Ohungo
- Legal Topics
- Bail Pending Appeal, Burden of Proof, Sexual Offences, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kipsang
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated overwhelming chances of success in the appeal to warrant bail pending appeal.
- 2 Whether the sentence imposed was manifestly excessive to justify release on bail pending appeal.
- 3 Whether exceptional or unusual circumstances exist to justify granting bail pending appeal.
Ratio Decidendi
The court held that the applicant had demonstrated an arguable appeal with good chances of success, particularly on the issues of burden of proof and the harshness of the sentence. The court distinguished the standards for bail pending trial from those for bail pending appeal, emphasizing that bail after conviction is not a right but a discretion exercised only where there is an overwhelming probability of success on appeal or exceptional circumstances. The court found that the applicant met this threshold and, considering the prevailing extraordinary circumstances due to the COVID-19 pandemic, granted bail pending appeal.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The applicant shall be released on bond of Kshs 200,000 plus one surety of a like amount to be examined by the Deputy Registrar.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL APPEAL NO 208 OF 2019
JULIUS KIPSANG ............................................... APPLICANT
VERSUS
REPUBLIC..........................................................RESPONDENT
RULING
1. JULIUS KIPSANG (the APPLICANT) was convicted on a charge of attempted defilement contrary to section 9 of the Sexual Offences Act. He was sentenced to serve 30 years imprisonment. Being aggrieved with the decision, he has filed an appeal against both sentence and conviction, and in the meantime prays to be released on bail pending hearing of the appeal.
2. Mr Sagasiwho appears for the applicant has submitted that the appeal stands high chances of success as the trial court shifted the burden of proof onto the applicant. Further, that the evidence was of a single witness whose credibility is questionable as she was economical with information about her general moral conduct. Counsel also pointed out that the sentence was manifestly excessive, thus predisposing the appeal to succeed.
3. Mr Onkobaon behalf of the DPP had no serious objection to the application, not so much on account of the likelihood of the appeal’s success, but on account of the extraordinary circumstances prevailing due to the global pandemic of the COVID 19 virus.
4. Once a trial court has made a determination and found an accused guilty of the offence, he is no longer considered innocent for his guilt has already been established. In this regard, if such a convict dissatisfied with the outcome, his recourse is to appeal against the decision. With respect to bail pending appeal, the burden of proof is on the convicted person to demonstrate that there is an “overwhelming probability” that his or her appeal will succeed.
5. Needless to say the conditions applicable for bail pending trial and bail pending appeal are not the same. After trial and conviction, an accused can no longer be presumed as innocent and bail is no longer an automatic right. Such an applicant must demonstrate that his appeal has overwhelming chances of success to be entitled to bail pending appeal.
6. The Court of Appeal in the case of Jivraj Shah -vs- Republic [1986] KLR 605, held as follows: -
“… If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on an account of some substantial point of law to be urged, and the sentence or substantial part of it, will have been served by the time the appeal is heard, conditions for granting bail will exist.”
7. Also in Dominic Karanja v. Republic [1986] KLR 612the it was held: -
“The most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty. The minor relevant considerations would be whether there are exceptional or unusual circumstances. The previous good character of the applicant and the hardship, if any, facing the wife and children of the applicant are not exceptional or unusual factors: see Somo v. Republic [1972] EA 476. A solemn assertion by an applicant that he will not abscond if he is released is not sufficient ground, even with support of sureties, for releasing a convicted person on bail pending appeal.”
8. The applicant’s counsel has pointed out to the issue regarding shifting the burden of proof, as well as the harsh nature of the sentence. Under section 9 of the Sexual Offences Act:
9. (1) A person who attempts to commit an act which would cause penetration with a child is guilty of an offence termed attempted defilement.
(2) A person who commits an offence of attempted defilement with a child is liable upon conviction to imprisonment for a term of not less than ten years.
I think the applicant has an arguable appeal with good chances of success and I find no reason to deny him being released on bail pending appeal. Consequently, he shall be released on bond of Kshs, 200,000 plus one surety of a like amount who shall be examined by the Deputy Registrar
E-Delivered and dated this 27th day of April 2020 at Eldoret
H. A. Omondi
Judge