[2002] KEHC 347 (KLR)
The court found that while the presumption is in favour of the correctness of the conviction, it retains discretion to grant bail pending appeal if the appeal raises substantial points and the applicant meets the requirements. The applicant, being a first offender, a young mother with a sick child, and having been...
Source-derived case information.
- Citation
- [2002] KEHC 347 (KLR)
- Parties
- Applicant: Lilian Kalekye Maingi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 17 of 2002
- Procedural Posture
- Criminal Application / Application for Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Legal Topics
- Bail Pending Appeal, Standard of Proof, Admissibility of Evidence, Mitigating Factors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Kalekye Maingi
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant should be granted bail pending the hearing and determination of her criminal appeal.
- 2 Whether the appeal has an overwhelming chance of success to justify release on bail.
- 3 Whether the mitigating factors warrant the grant of bail.
Ratio Decidendi
The court found that while the presumption is in favour of the correctness of the conviction, it retains discretion to grant bail pending appeal if the appeal raises substantial points and the applicant meets the requirements. The applicant, being a first offender, a young mother with a sick child, and having been on bond during trial, presented sufficient mitigating factors. The court was satisfied that these circumstances, combined with the grounds of appeal raised, justified the grant of bail pending appeal.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The applicant is released on bond of KES 50,000 plus one surety of an equal amount pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPLICATION NO. 17 OF 2002
APPEAL NO. 460 OF 2001
(From Original Conviction and Sentence in Criminal Case No. 441 of 2000
of the Resident Magistrate’s Court at Mombasa A.W. Ngugi – R.M.)
LILIAN KALEKYE MAINGI ……………………………… APPLICANT
- VERSUS -
REPUBLIC ………………………………………………. RESPONDENT
R U L I N G
This is an application by Chamber Summons brought under Section 357 of the Criminal Procedure Code seeking an order for the release of the Applicant on Bail pending the hearing and determination of the Appeal herein. The application is supported by an Affidavit sworn by the applicant’s Counsel Ngacaku Gakuhi sworn on 18th January, 2002. It is supported by reasons that the Appeal has an overwhelming chance of success as the trial court did not take into account that Photo copy receipts were produced in evidence contrary to the laid down provisions of the law.
It further failed to consider the issue of pre-existing disagreement between the Applicant and the complainant which gave rise to a pending Civil Case and known threats by the complainant as against the Applicant.
Counsel for the Applicant further submitted that the prosecution failed to proof it’s case beyond any reasonable doubt after which the court proceeded to convict and sentence the Applicant to 2 years imprisonment which sentence he submits is excessive considering the mitigating factors.
The state Counsel Ms. Mwaniki did oppose the application on the grounds that the presumption is always that the trial court is right until decided otherwise. I have read the Appeal record as well as the proceedings and judgement as is required. I am in agreement with the State Counsel that the presumption is that one has been rightly convicted until otherwise decided. However this Court is also empowered under the Provisions of the Criminal Procedure Code to consider and release persons so convicted on Bail provided that they meet the laid down requirements. The main consideration is whether the appeal has a chance to success and this the Applicant’s Counsel has highlighted the areas giving rise to this appeal. He also asked the court to consider the mitigating factors which are that the applicant is a young mother with a child who suffers from Bronchitis and her husband is not in any gainful employment.
I have considered all the points in favour of the applicant and note the issues raised in mitigation. The Courts are meant to help in rehabilitating.
The Applicant is a first offender and has a family to take care off. It is for this reason that she is released on Bond of 50,000/= plus 1 surety of an equal amount pending the hearing and determintion of the Appeal. She was on a similar Bond during the hearing of the original trial.
Dated and Delivered at Mombasa this 22nd January, 2002.
P.M. TUTUI
COMMISSIONER OF ASSIZE