[2021] KEHC 1452 (KLR)
The court found that the appellant's appeal may have a chance of success after considering the trial court's proceedings and judgment. The appellant is a civil servant with a permanent abode, had previously complied with bail terms during trial, and is engaged in settlement negotiations with the complainant. These...
Source-derived case information.
- Citation
- [2021] KEHC 1452 (KLR)
- Parties
- Appellant: Nancy Nduta Wairimu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E064 of 2021
- Procedural Posture
- Criminal Appeal / Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- MM Kasango
- Legal Topics
- Bail Pending Appeal, Forgery, Conviction Appeal, Sentencing, Exceptional Circumstances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Nduta Wairimu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Bail Pending Appeal
Legal Issues
- 1 Whether the appellant has demonstrated exceptional or unusual circumstances to warrant bail pending appeal.
- 2 Whether the appeal has substantial merit or overwhelming chances of success justifying release on bail.
- 3 Whether the appellant is likely to abscond or breach bail conditions if released.
Ratio Decidendi
The court found that the appellant's appeal may have a chance of success after considering the trial court's proceedings and judgment. The appellant is a civil servant with a permanent abode, had previously complied with bail terms during trial, and is engaged in settlement negotiations with the complainant. These factors, combined with the absence of evidence suggesting a risk of absconding, constitute exceptional circumstances justifying the grant of bail pending appeal. The court applied the principles from Jivraj Shah v. Republic (1986) KLR 605, emphasizing that bail pending appeal may be granted where there are substantial points of law to be argued and the appeal has merit....
Court Disposition
Application for bail pending appeal allowed.
Orders
- The appellant shall be released pending the hearing and determination of this appeal on her own bond of Kshs. 500,000 with two sureties of similar amount.
- The appellant shall attend mention of this appeal before the Deputy Registrar until this appeal is disposed; a mention date will be fixed at the reading of this ruling.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL APPEAL NO. E064 OF 2021
BETWEEN
NANCY NDUTA WAIRIMU............. APELLANT
VERSUS
REPUBLIC.....................................RESPONDENT
RULING
1. NANCY NDUTA WAIRIMU was convicted of four counts of forgery by the Thika Chief Magistrate’s court. She was aggrieved by her conviction and sentence of 4 years on each count, which sentence runs concurrently. She has accordingly filed this appeal. She has filed an application for bail pending the hearing and determination of this appeal.
2. The principle consideration when a court is faced with an application for bail pending appeal was discussed in the case JIVRAJ SHAH VS. REPUBLIC (1986) KLR 605 as follows:-
“(1) The principal consideration in an application for bond pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.
(2) If it appears prima face from the totality of the circumstances that the appeal is likely to be successful on account of some substantial point of law to be argued and that the sentence or substantial part of it will have been served by the time the appeal is heard, conditions for granting bail exists.
(3) The main criteria is that there is no difference between overwhelming chances of success and a set of circumstances which disclose substantial merit in the appeal which could result in the appeal being allowed and the proper approach is the consideration of the particular circumstances and weight and relevance of the points to be argued.”
3. The forgery which the appellant was convicted of, related to a land transaction. The probation officers report presented before the trial court showed that the appellant and the complainant were in the process of negotiating a settlement which would lead to the complainant receiving an alternative land.
4. Having considered the trial court’s proceedings and judgment, I have formed the opinion that the appellant’s appeal may have a chance of success. In view of the above and because the appellant is a civil servant with a permanent abode, and because the appellant had been granted bail during her trial whose terms she did not breach, the application does succeed.
5. I grant the following orders:
(a) The appellant shall be released pending the hearing and determination of this appeal on her own bond of Khss.500,000/= with two sureties of similar amount.
(b) Appellant shall attend mention of this appeal before the Deputy Registrar until this appeal is disposed. A mention date will be fixed at the reading of this Ruling.
(c) The appellant shall not leave the jurisdiction of this Court without the permission of the court.
6. Orders accordingly.
RULING DATED AND DELIVERED AT KIAMBU THIS 9TH DAY OF DECEMBER, 2021.
MARY KASANGO
JUDGE
Coram:
Court Assistant : Maurice
For DPP :- Ms. Kathambi/Kasyoka
For Appellant :- Ms. Wanjiru
Accused : NANCY NDUTA WAIRIMU:- Present
COURT
RULING delivered virtually.
MARY KASANGO
JUDGE