[2008] KEHC 1855 (KLR)
The court found that the applicant had complied with previous bail conditions and that the requirement to appear every two weeks was unnecessarily restrictive given his business obligations, which require frequent travel. The court accepted the applicant's explanation as rational and determined that the bail...
Source-derived case information.
- Citation
- [2008] KEHC 1855 (KLR)
- Parties
- Appellant: Mwanya Migadde; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 228 of 2008
- Procedural Posture
- Criminal Miscellaneous Application / Application to Vary Bail Conditions Pending Appeal
- Outcome
- application allowed
- Judges
- DO Ohungo
- Legal Topics
- Bail Pending Appeal, Variation of Bail Conditions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwanya Migadde
Appellant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Application to Vary Bail Conditions Pending Appeal
Legal Issues
- 1 Whether the condition requiring the appellant to appear before the Deputy Registrar every two weeks pending appeal should be varied to a longer interval.
- 2 Whether the appellant's business obligations justify a less restrictive bail reporting schedule.
Ratio Decidendi
The court found that the applicant had complied with previous bail conditions and that the requirement to appear every two weeks was unnecessarily restrictive given his business obligations, which require frequent travel. The court accepted the applicant's explanation as rational and determined that the bail condition should be varied to allow the applicant to appear before the Deputy Registrar every two months instead of every two weeks. This adjustment balances the need to ensure the applicant's availability for the appeal with his right to conduct his livelihood without undue interference.
Court Disposition
application allowed
Orders
- Order No. 2 of the orders made on 20th December, 2007 is varied: the applicant will appear before the Deputy Registrar for mention every two months until the appeal is heard, effective from the next scheduled mention.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Misc. Application 228 of 2008
MWANYA MIGADDE…….…….……….……………APPELLANT
VERSUS
REPUBLIC ……..…………….……………………RESPONDENT
RULING
MWAYA MIGADE (the applicant) has filed an application dated 21st April, 2008 by way of Chamber Summons seeking court to vary the orders made by Hon. Justice Dulu on 20th December, 2007. The applicant was granted bail pending appeal and the orders were inter alia that:-
“The appellant will appear before the Deputy Registrar of this court for mention every two weeks until the appeal is heard with with the first mention being on 3rd January, 2008. ”
It is this condition which the applicant seeks to be varied and suggests mention be after 90 days or any other period deemed expedient. The reason for this request is that the applicant is a businessman who frequently has to travel out of Nairobi to be able to carry out his business activities and earn his livelihood, he needs a longer period extended for the mention dates.
The supporting affidavit sworn by the applicant simply reiterates the grounds alluded to. His Counsel Mr Rambo submitted that the applicant has been compliant with the conditions earlier set but the bi-weekly court attendance has severally hampered applicant’s ability to carry out his business matters which requires him to be out of Nairobi often.
The learned State Counsel had no objection but suggested that the period be varied to at least one month. Mr Rombo’s response is that one month would be restrictive and the appeal will take longer than six months before its even fixed
for hearing. He explained that the applicant is a petrol fuel dealer and requires to be in Eldoret, Lokichoggio and Sudan every three or four weeks and sometimes when he goes to Sudan it takes him even one month.
The explanation given appears rational to me. I think applicant should be allowed to live his life as normal as possible.
I will therefore allow the application affecting No. 2 of the earlier orders made on 20th December, 2007 to be varied to this effect:-
The applicant will appear before the Deputy Registrar of this court for mention every two months until the appeal is heard – this takes effect from the date of the next scheduled mention.
Delivered and dated this 11th day of June, 2008 at Nairobi.
H.A. OMONDI
JUDGE