[2023] KEHC 1702 (KLR)
The court held that bail pending appeal is not a constitutional right but a statutory one, and the presumption of innocence no longer applies after conviction. The applicant must demonstrate exceptional or unusual circumstances to be granted bail pending appeal. The appellant's reliance on the grounds of appeal and...
Source-derived case information.
- Citation
- [2023] KEHC 1702 (KLR)
- Parties
- Appellant: MK; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E154 of 2022
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bail Pending Appeal and DNA Testing
- Outcome
- application dismissed
- Judges
- TW Cherere
- Legal Topics
- Bail Pending Appeal, Exceptional Circumstances, Presumption of Guilt, Dna Testing, Sexual Offences, Paternity Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MK
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Bail Pending Appeal and DNA Testing
Legal Issues
- 1 Whether the appellant has demonstrated exceptional circumstances to warrant grant of bail pending appeal.
- 2 Whether the court should order DNA testing to determine paternity of the child of the defiled minor at this stage.
Ratio Decidendi
The court held that bail pending appeal is not a constitutional right but a statutory one, and the presumption of innocence no longer applies after conviction. The applicant must demonstrate exceptional or unusual circumstances to be granted bail pending appeal. The appellant's reliance on the grounds of appeal and the allegation that the trial court failed to order a DNA test to ascertain paternity do not amount to exceptional circumstances. The issue of paternity is the main ground of appeal and should be addressed during the substantive hearing of the appeal, not at the interlocutory stage. Consequently, the appellant failed to meet the threshold for grant of bail pending appeal, and...
Court Disposition
application dismissed
Orders
- The Notice of Motion dated December 09, 2022 is disallowed.
- No order is made concerning DNA testing; the issue to be argued in the appeal.
Full Case Text
Judgment text and source record
25 paragraphs
K v Republic (Criminal Appeal E154 of 2022) [2023] KEHC 1702 (KLR) (9 March 2023) (Ruling)
Neutral citation: [2023] KEHC 1702 (KLR)
Republic of Kenya
In the High Court at Meru
Criminal Appeal E154 of 2022
TW Cherere, J
March 9, 2023
Between
MK
Appellant
and
Republic
Respondent
Ruling
1. MK (appellant/applicant) by a Notice of Motion dated December 09, 2022 has moved the court for orders that he be admitted to bail pending the hearing and determination of the appeal and for DNA testing to determine the paternity of the child of the defiled minor on grounds among others that he is not a flight risk and that paternity of the child of the defiled minor will determine whether eh defiled the minor.
2. Mr Masila, principla prosecution counsel opposed the application by way of Grounds of Opposition filed on January 30, 2023 and submitted that appellant has not demonstrated special circumstances that would entitle him to bond pending appeal.
Analysis and determination 3. I have carefully considered the application in the light of the affidavit on record and the response on behalf of the State and submission filed on behalf of the applicant.
4. Bail pending appeal is not a constitutional right, but a statutory right under section 356 Criminal Procedure Code. Thus at the time of considering bail pending appeal, the court has to bear in mind that the presumption of innocence is no more, as a conviction by a court of competent jurisdiction creates a presumption of guilt.
5. Courts have stated over and over again, that an applicant for bail pending appeal has to demonstrate unusual or exceptional circumstances, for such an application to succeed – See Jivraj Shah –vs- Republic (1986) KLR 605.
6. At this stage of the application, I am not required to finally determine the appeal. My duty is limited to determine whether the appellant has demonstrated any unusual or exceptional circumstances to show that his remaining in custody would be an injustice.
7. Merely relying on the grounds of appeal and alleging that the trial court failed to order for DNA test to ascertain paternity of the child of the defiled minor is not an unusual or exceptional circumstance that would persuade this court to release applicant/appellant on bail pending appeal.
8. I notice that the issue of paternity of the child of the defiled minor is the main ground of appeal. I decline to make any order concerning that issue and direct that it be argued in the appeal
9. Consequently, I find that the appellant/applicant who is convicted and is undergoing punishment because of that conviction has not passed the test for grant of bond pending appeal.
10. In the end, the Notice of Motion dated December 09, 2022 is considered and found to have no merit and it is disallowed.
DELIVERED IN MERU THIS 09th DAY OF March 2023WAMAE T W CHEREREJUDGEAppearancesCourt assistant - KinotiAppellant/Applicant - presentFor the appellant/applicant -Mr Muthomi advocateFor the respondent - Mr Gitonga (PPC)