[2012] KEHC 2751 (KLR)
The court found that, based on the judgment being challenged and the circumstances surrounding the applicant's conviction and sentence for manslaughter, the appeal—particularly on the element of sentence—had overwhelming chances of success. The court emphasized that it was not determining the appeal at this stage,...
Source-derived case information.
- Citation
- [2012] KEHC 2751 (KLR)
- Parties
- Applicant: Nicasio Muchungu Mwaniki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 61 of 2011
- Procedural Posture
- Bail Pending Appeal / Ruling on Application for Bail Pending Appeal
- Outcome
- application for bail pending appeal allowed
- Judges
- GMA Dulu
- Legal Topics
- Bail Pending Appeal, Manslaughter Conviction, Sentencing, Exceptional Circumstances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicasio Muchungu Mwaniki
Applicant
Republic
Respondent
Procedural Posture
Bail Pending Appeal / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal after conviction for manslaughter.
- 2 Whether the appeal has overwhelming chances of success or there exist exceptional circumstances justifying release on bail pending appeal.
Ratio Decidendi
The court found that, based on the judgment being challenged and the circumstances surrounding the applicant's conviction and sentence for manslaughter, the appeal—particularly on the element of sentence—had overwhelming chances of success. The court emphasized that it was not determining the appeal at this stage, but the prospects of success on appeal justified the grant of bail. Additionally, the relatively short prison sentence was a relevant factor. Consequently, the court held that there was no justification for depriving the applicant of his liberty pending the outcome of the appeal and ordered his release on bond.
Court Disposition
application for bail pending appeal allowed
Orders
- The applicant shall be released on a bond pending appeal of Kshs.200,000 with one surety of like sum.
Full Case Text
Judgment text and source record
20 paragraphs
NICASIO MUCHUNGU MWANIKI ………………..………… ACCUSED/APPLICANT
VERSUS
REPUBLIC …………......… DIRECTOR OF PUBLIC PROSECUTION/RESPONDENTS
R U L I N G
Before me is an application for bail pending appeal dated 28th March 2012, filed by Nicasio Muchungu Mwaniki. The application is strongly opposed by the Director of Public Prosecutions. The counsel for the parties, Anne Kiusya & Company for the applicant and Mr Mukofu Naylor, State Counsel for the Director of Public Prosecutions, filed written submissions which they relied upon.
The applicant was convicted of manslaughter contrary to Section 202 (1) of the Penal Code and sentenced on 18th February 2011 to serve five (5) years imprisonment. He has now appealed to this court, and has also made this application for bail pending appeal.
A person who is convicted is presumed to be properly convicted and liable to serve sentence. He can only be released on bail pending appeal, if his appeal has overwhelming chances of success, or there are unusual or exceptional circumstances relating to the matter. In Dominic Karanja –vs- Republic (1986) KLR 612 the Court of Appeal stated:-
“The most important issue was that if the appeal had such overwhelming chances of success, there was no justification for depriving the applicant of his liberty and the minor relevant consideration would be whether there were exceptional or unusual circumstances.”
In the judgment being challenged on appeal, the learned magistrate stated:
“The incident having happened at Kenol area, the accused could have easily taken the victim to Kangundo or Machakos District hospitals which are not more than 30 kilometers apart. The accused went to Nairobi which is 60 kilometers away then returned again to Kangundo. The accused has not given any explanation or justification as to why he did not take the victim to the nearest hospital that very morning. Though he might not have intended to have him die or thought that the victim would die the delay occasioned by the accused ultimately led to the death of Muthiani.”
Considering the above, I am of the view that the appeal especially on the element of sentence has overwhelming chances of success. It is not that I am determining the appeal, but merely stating that the appeal with regard to sentence has overwhelming chances of success. I find no reason to deprive the applicant of his freedom and detaining him in custody further since the prison sentence is relatively short.
The applicant shall therefore be released on a bond pending appeal of Kshs.200,000/= with one surety of like sum.
Dated and delivered at Machakos this 3rdday of July 2012.
………………………………………
George Dulu
Judge
In the presence of:
Court clerk – Nyalo
N/A for State
Appellant/Applicant in person