[2001] KEHC 96 (KLR)
The court found that the applicant's conviction was based on evidence from two individuals who were not called as witnesses, and whose statements were admitted as hearsay. The prosecution failed to provide sufficient reasons for not calling these witnesses, rendering the evidence against the applicant of no...
Source-derived case information.
- Citation
- [2001] KEHC 96 (KLR)
- Parties
- Applicant: Kalus Guyo alias Hassan; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 52 of 2001
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Bail Pending Appeal
- Outcome
- application allowed
- Legal Topics
- Bail Pending Appeal, Admissibility of Evidence, Hearsay Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kalus Guyo alias Hassan
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the failure to call key prosecution witnesses rendered the conviction unsafe.
- 3 Whether the evidence relied upon was inadmissible hearsay.
Ratio Decidendi
The court found that the applicant's conviction was based on evidence from two individuals who were not called as witnesses, and whose statements were admitted as hearsay. The prosecution failed to provide sufficient reasons for not calling these witnesses, rendering the evidence against the applicant of no probative value. The court also noted that the applicant had already served a significant portion of his sentence and that the appeal had not yet been admitted, meaning he could serve most or all of his sentence before the appeal was heard. These factors constituted exceptional circumstances justifying the grant of bail pending appeal.
Court Disposition
application allowed
Orders
- The applicant shall be released from prison upon execution of a personal bond of Kshs.20,000 with one surety of like sum.
- The applicant will attend the mention of the appeal once every month until it is heard.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA MISCELLANEOUS CRIMINAL APPLICATION NO.52 of 2001
(From Original Conviction and Sentence in Criminal Case No.1386 of 1997 of the Resident Magistrate’s Court at Kwale – J.Nyaga, Esq., R.M.)
KALUS GUYO alias HASSAN……………………………….APPLICANT
= V E R S U S =
REPUBLIC…………………………………………………RESPONDENT
R U L I N G
The Applicant seeks an order for Bail pending Appeal in his Notice of Motion dated 19. 6.01. He was convicted on 7. 2.01 for the offence of Housebreaking and Stealing contrary to Section 304(1) and 279(b) of the Penal Code and was sentenced to serve 15 months imprisonment on each limb of the charge, the sentences to run concurrently. It had been alleged that the Applicant had broken and entered into the house of the complainant and stolen therein a video machine valued at Kshs.23,500/-.
He was convicted on the basis of the evidence of the complainant and the Police Officer who arrested the Applicant. It was the complainant’s evidence that she had left the key to her house with a neighbour before going upcountry only to return and find her video machine missing. One week later the video machine was found in possession of another person who was said to be the friend of the Applicant. Neither the neighbour who had been left with the key nor the friend in whose possession the video machine was found were called as witnesses. The Learned Trial Magistrate nevertheless admitted in evidence and acted on information that those two persons are supposed to have given which was incriminating to the Applicant.
The main Ground of Appeal, as submitted by learned counsel for the Applicant Mr. Magolo, will be that the evidence of such witnesses was inadmissible and hearsay. The failure to call the witnesses was also fatal to the prosecution case. There are also other grounds relied on in the Petition of Appeal
. It is conceded by Learned State Counsel Mr. Ogoti that the Ground of Appeal is validly raised and he did not therefore oppose the application.
I have perused the Lower Court proceedings and have confirmed that the two witnesses were not called although the prosecution intended to call them. No sufficient grounds were laid for failure to do so except to say that they were not traced. Whatever evidence they harboured therefore was of no probative value in the case and ought not to have been accepted from other sources and believed. Indeed the failure to call those two witnesses may well have been fatal to the prosecution case but that is for the Appellate Court to decide..
The sentence imposed is 15 months and the Applicant has so far served about 4 months of it. The Appeal has yet to be admitted and he would have served a substantial part of the sentence before the hearing.
I am satisfied that all these are exceptional circumstances to warrant the grant of Bail pending the hearing of the Appeal.
Accordingly I allow the application and order that the Applicant shall be released from prison upon execution of a personal bond of Kshs.20,000/- with one surety of like sum. He will attend the Mention of the Appeal once every month until it is heard.
Dated this 3rd day of July, 2001.
P.N. WAKI
J U D G E