[2018] KEHC 2295 (KLR)
The court found that the appeal was meritorious with overwhelming chances of success and that exceptional circumstances existed, including the appellant's status as a single mother, her employment, and her ongoing university studies. The court determined that the appellant was not a flight risk, as evidenced by her...
Source-derived case information.
- Citation
- [2018] KEHC 2295 (KLR)
- Parties
- Appellant: Mary Cheptum; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 67 of 2018
- Procedural Posture
- Criminal Appeal / Application for Bond Pending Appeal
- Outcome
- application for bond pending appeal granted
- Judges
- AM Githinji
- Legal Topics
- Bail Pending Appeal, Exceptional Circumstances, Flight Risk Assessment, Sentencing and Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Cheptum
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bond Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bond pending the hearing and determination of her criminal appeal.
- 2 Whether exceptional circumstances exist to justify the grant of bond to a convicted person pending appeal.
- 3 Whether the appellant poses a flight risk if released on bond pending appeal.
Ratio Decidendi
The court found that the appeal was meritorious with overwhelming chances of success and that exceptional circumstances existed, including the appellant's status as a single mother, her employment, and her ongoing university studies. The court determined that the appellant was not a flight risk, as evidenced by her compliance with previous bond terms in the lower court. The court also noted that the custodial sentence was relatively short and that the appellant might serve a substantial part or all of it before the appeal was heard, potentially rendering the appeal nugatory. However, the court recognized that as a convict, the appellant might have a greater temptation to abscond,...
Court Disposition
application for bond pending appeal granted
Orders
- The appellant is released on own bond of Kshs. 1,000,000 with one surety of like amount.
- The appeal is admitted to hearing.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT ELDORET
CRIMINAL APPEAL NO. 67 OF 2018
MARY CHEPTUM .........................APPELLANT
VERSUS
REPUBLIC ....................................RESPONDENT
RULING
This is an application for bond pending hearing and determination of the appeal which was lodged on 6th of September, 2018. The appellant/Applicant by way of notice of motion filed the application on 19th September, 2018. The said application is founded on the grounds that:-
1. The filed appeal is meritorious and has overwhelming chances of success.
2. There are exceptional circumstances warranting the release of the appellant on bond and or bail.
3. The balance of convenience tilts in favour of granting the appellant bond for she is a primary school teacher who’ll lose her job if she conducts her appeal while in custody.
4. The appellant is a single mother of two minors and it is only fair that she continues to take care of them while she pursues the appeal.
5. If the application is not allowed the appeal may be rendered nugatory for the applicant may have completed sentence by the time it is heard and determined.
The said application is also supported by the affidavit of the applicant sworn on 19th September, 2018. In it she confirms the aforementioned grounds and in addition depones that she is a student, pursuing a degree in Guidance and Counselling at Kisii University. If granted bond she says she’ll abide by the terms and conditions which the court will impose. In the lower court she was out on bond and did not abscond. Her monthly pay is paltry Kshs. 11,500 per month and she is unable to pay the imposed fine of Kshs. 2,500,000/-.
When the application came up for hearing on 29th October, 2018 Mrs. Kagaliwho appeared for the state did not oppose the application. She said she had perused the record and there are areas which merit the appeal.
I have considered the said application. What comes out clearly is that the filed appeal is meritorious and has overwhelming chances of success. The appellant is not a flight risk given that in the lower court she was out on bond of 800,000/- and never absconded. She is also a teacher and a mother of two children who depends on her. Currently she is also pursuing a degree course at Kisii University, in Guidance and Counselling. She has strong family and social ties which makes her a person unlikely to abscond. Though convicted on all the six counts and fined on each count 500,000/- in default to serve 2 years imprisonment the custodial sentences runs concurrently which means she is to serve only 2 years in custody. There is a chance that if bond or bail is not granted she may have served the full sentence or a substantial period of it by the time the appeal is heard and determined. Her being a single mother of two, and their sole bread winner, makes it the best interest of the said children that she is released on bond to continue taking care of them.
However, it need be understood that unlike in the lower court where the applicant was a suspect, at this point she is a convict, which may raise temptation to abscond. This calls for stiffer bond terms than those
granted by the lower court. I therefore find the application merited and is granted. The appellant will be released on own bond of Kshs. one million with one surety in like amount.
The appeal is admitted to hearing. We can have a hearing date.
S. M GITHINJI
JUDGE
DATED, SIGNEDandDELIVEREDatELDORETthis 7th day of November, 2018
In the presence of:-
The Applicant/Appellant
Ms Mumu for state
Mr. Mwelem – Court assistant