[2022] KEHC 11061 (KLR)
The court found that the appellant was not challenging the conviction but only the length of the sentence, and there was no doubt cast on the legality of the imprisonment. The sentence of three years was unlikely to be fully served before the appeal was heard and determined. The court also considered that the...
Source-derived case information.
- Citation
- [2022] KEHC 11061 (KLR)
- Parties
- Appellant: Dishon Odera Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E013 of 2022
- Procedural Posture
- Criminal Appeal / Ruling on Application for Stay of Execution or Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- FA Ochieng
- Legal Topics
- Bail Pending Appeal, Sentencing Principles, Assault Actual Bodily Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dishon Odera Ochieng
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Stay of Execution or Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal after conviction and sentencing for assault causing actual bodily harm.
- 2 Whether the sentence imposed was manifestly excessive or harsh.
Ratio Decidendi
The court found that the appellant was not challenging the conviction but only the length of the sentence, and there was no doubt cast on the legality of the imprisonment. The sentence of three years was unlikely to be fully served before the appeal was heard and determined. The court also considered that the appellant had not absconded during trial while on bond, which was a favorable factor. The circumstances of the offence, including the unprovoked assault, would be considered at the appeal hearing. On balance, the court exercised its discretion to grant bail pending appeal on a personal bond of Kshs 50,000 with one surety of like sum.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The appellant is granted a personal bond of Kshs 50,000 with one surety of like sum pending the hearing and determination of the appeal.
Full Case Text
Judgment text and source record
30 paragraphs
Ochieng v Republic (Criminal Appeal E013 of 2022) [2022] KEHC 11061 (KLR) (28 July 2022) (Ruling)
Neutral citation: [2022] KEHC 11061 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Appeal E013 of 2022
FA Ochieng, J
July 28, 2022
Between
Dishon Odera Ochieng
Appellant
and
Republic
Respondent
Ruling
The appellant has sought either the stay of execution of the sentence or bail pending the hearing and determination of his appeal. 1. He was convicted for the offence of Assault causing actual bodily harm contrary to section 251 of the Penal Code.
2. He was then sentenced to 3 Years imprisonment.
3. Following the conviction and sentence on March 31, 2022, the appellant filed a petition of appeal dated April 13, 2022.
4. In the appeal, he has challenged the sentence, as he believes it to be manifestly excessive and harsh.
5. In his view, the trial court ought to have contemplated imposing a fine, rather than custodial sentence.
6. The appellant expressed the view that the appeal has overwhelming chances of success. Therefore, if the reliefs sought were not granted, the appellant said that the appeal would be rendered nugatory. He would have already suffered injury and damage as a result of the imprisonment, if he remained in jail whilst awaiting the hearing and determination of the appeal.
7. The appellant further noted that if the court granted him bail pending appeal, that would not occasion any prejudice to the respondent.
8. In determining this application, I take cognizance of the fact that the appellant is not challenging the conviction. He was only challenging the sentence.
9. The challenge being mounted against the sentence relates only to the length of incarceration. The appellant does not cast any doubt on the legality of the sentence of imprisonment.
10. I note that the sentence is of 3 years imprisonment. Therefore, I hold the view that it was unlikely that the appellant would have served the full sentence before his appeal was heard and determined.
11. I also note that the appellant attacked the complainant without any provocation at all. He hit the complainant, who then fell off his motor-bike.
12. The appellant continued to assault the complainant even after the complainant had fallen down.
13. The circumstances in which the offence was committed will doubtlessly be a key factor when the court will be determining whether or not the sentence was harsh or excessive.
14. Meanwhile, I note that during trial, the appellant was out, on bond. As he did not abscond whilst he was on trial, that is a favourable factor, to the appellant’s credit.
15. In the result, I do grant him a personal bond of Kshs 50,000/= with one (1) Surety of like sum.
DATED, SIGNED AND DELIVERED AT KISUMUTHIS 28TH DAY OF JULY 2022FRED A. OCHIENGJUDGE