[2008] KEHC 227 (KLR)
The court found that the applicant, having pleaded guilty to the charges, has a limited right of appeal and must demonstrate exceptional or special circumstances to be granted bail pending appeal. The applicant failed to provide evidence of such circumstances, as the supporting affidavit was sworn by the advocate...
Source-derived case information.
- Citation
- [2008] KEHC 227 (KLR)
- Parties
- Applicant: Kenneth Kiprono Ngeno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- ? 14 of 2008
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Bail Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Bail Pending Appeal, Sentencing, Forest Offences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Kiprono Ngeno
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal after pleading guilty to forest-related offences.
- 2 Whether exceptional or special circumstances have been demonstrated to warrant grant of bail pending appeal.
Ratio Decidendi
The court found that the applicant, having pleaded guilty to the charges, has a limited right of appeal and must demonstrate exceptional or special circumstances to be granted bail pending appeal. The applicant failed to provide evidence of such circumstances, as the supporting affidavit was sworn by the advocate rather than the applicant and lacked a proper medical report or other justification. The court, relying on established legal principles and precedent, held that the application lacked merit and dismissed it accordingly.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Misc. Cr. App. 14 of 2008
KENNETH KIPRONO NGENO …………………………….APPLICANT
VERSUS
REPUBLIC ……………..…………………………………RESPONDENT
RULING
1: Background
1. This is brought under a certificate of urgency by the 1st applicant original plaintiff that he be released on bail pending appeal.
2. The applicant has with two others been accordingly pleaded guilty to a charge on three counts for felling and cutting the forest contrary to section 4(1) of the Forest Act. Entering into the Government Forest without permission contrary to section 52(1) and being in possession of forest produce.
3. The three accused together with the applicant herein pleaded guilty to all the three counts and were accordingly convicted. They thereafter were sentenced to imprisonment term in default of not paying the fine.
II: Application
4. The applicant prays for bail pending appeal. The state opposes this and prays that the sentence is below minimum as required by law.
III: Findings
5. I have an opportunity of perusing the file from the lower court, the appeal file and proceedings therein.
6. The applicant is convinced of an excessive sentence imposed. In this case the applicant pleaded guilty to the charge. Where this occurs there is no right of appeal unless with the discretion of the court. It is not a complete bar to appeal.
7. Bail pending appeal has been held to be given only in specific and special amenities. The special amenities has not been said but the applicant has indeed not demonstrated that there is any special circumstances for his release on bail. There must be a proper medical doctor’s report if that is what he relies in his affidavit.
8. Unfortunately the affidavit was deponed to by the advocate himself and not the applicant.
In the case of GIRDHAR DHANJI MASRAIM V REPUBLIC(1960) EA 320 (Shendan J)
Bail pending appeal is only given in exceptional circumstance
In the case of SIMON NYAGACHIKI KIVUTI V R (Ang’awa J) CA 126/08unreported also emphasized this.
9. I accordingly find this application have no merits. It is dismissed.
DATED this 17th day of December, 2008 at KERICHO.
M.A. ANG’AWA
JUDGE
Advocate
J.M. Motanya advocate instructed by M/S Motanya & Co. advocates
for the applicant – present
R.K. Koech – State Counsel instructed by the Attorney General
for the respondent - present