[2007] KEHC 1476 (KLR)
The court found that the appellant's application for bail pending appeal was not merited because the appellant failed to demonstrate overwhelming chances of success in the appeal. The court considered the submissions and perused the proceedings, but was not persuaded that the trial court's failure to indicate the...
Source-derived case information.
- Citation
- [2007] KEHC 1476 (KLR)
- Parties
- Appellant: Norman Njoroge Githu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 132 of 2007
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Bail Pending Appeal, Right to Fair Trial, Language of Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Norman Njoroge Githu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal.
- 2 Whether the trial court violated the appellant's constitutional rights by failing to indicate the language understood by the appellant.
- 3 Whether the appeal has overwhelming chances of success.
Ratio Decidendi
The court found that the appellant's application for bail pending appeal was not merited because the appellant failed to demonstrate overwhelming chances of success in the appeal. The court considered the submissions and perused the proceedings, but was not persuaded that the trial court's failure to indicate the language understood by the appellant or the alleged constitutional violations were sufficient to meet the threshold for granting bail pending appeal. The guiding principle, as set out in Kaguma v Republic, is that overwhelming chances of success must be shown, and the appellant did not meet this standard. Consequently, the application was dismissed.
Court Disposition
application dismissed
Orders
- The appellant's application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 132 of 2007
NORMAN NJOROGE GITHU………………....……………………..…APPELLANT
Versus
REPUBLIC……………………………...……………..………………RESPONDENT
RULING
The Appellant herein was convicted of assault causing actual bodily harm on the 17th May 2007. The Appellant was sentenced to two years imprisonment. By an application dated 28th May 2007, the Appellant seeks that he be admitted to bail pending the hearing and determination of his appeal. The application is brought under Section 356(1) and Section 357(1) of the Criminal Procedure Code. It was argued on behalf of the Appellant that his appeal has the overwhelming chances of success and in this respect counsel for Appellant argued that the trial court failed to indicate the language that the Appellant understood. In so doing counsel argued that the court violated the Appellant’s constitutional rights as per Section 77(2) of the Constitution. The Appellant relied on the following case: Criminal Appeal No. 243 of 2005 between SWAHIBU SIMBAUNI SIMIYU & ANOTHER -V- REPUBLIC.
The Court in that case held as follows:
“It is abundantly clear from these provisions set out from the Constitution and the Criminal Procedure Code that in a criminal trial the language of the trial must be understood by the accused person.”
The Appellant’s counsel further stated that even at taking the plea it is not clear whether the Appellant understood the substance of the charge. This he stated was contrary to Section 198 (1) of the Criminal Procedure Code. The application was opposed by the State. The State was of the view that the appeal does not have high chances of success. Further that the prosecution had proved their case beyond reasonable doubt. The principles which guide the court in the consideration of an application for bail pending appeal were well set out in the case of KAGUMA -V- REPUBLIC. This case held as follows:
“For the Applicant to obtain bail pending appeal, he had to demonstrate overwhelming chances of success. Minor relevant considerations would be whether there were exceptional or unusual circumstances. Previous good character of the Applicant, hardship facing the wife and children, mere ill health, or even a solemn assertion that the Applicant would not abscond, were not exceptional circumstances.
I confirm that I have perused the proceedings and I have considered the submissions made by counsels. I find that the Appellant’s application is not merited and I therefore hereby dismiss the same.
Dated and delivered at Nyeri this 28th day of September, 2007.
MARY KASANGO
JUDGE