[2024] KEHC 13486 (KLR)
The court found that the appellant's ill health, specifically diabetes, ulcers, and hypertension, constituted an exceptional circumstance as the prison facility may not be able to provide the requisite medical attention and diet. While acknowledging that the appellant is serving a lawful sentence, the court balanced...
Source-derived case information.
- Citation
- [2024] KEHC 13486 (KLR)
- Parties
- Appellant: Kennedy Otieno Ochieng; Appellant: Polycap Otieno Olela; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E057 of 2024
- Procedural Posture
- Criminal Case / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- MS Shariff
- Legal Topics
- Bail Pending Appeal, Exceptional Circumstances, Ill Health in Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Otieno Ochieng
Appellant
Polycap Otieno Olela
Appellant
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant should be admitted to bail pending appeal on grounds of ill health.
- 2 Whether exceptional circumstances exist to justify release on bail after conviction.
Ratio Decidendi
The court found that the appellant's ill health, specifically diabetes, ulcers, and hypertension, constituted an exceptional circumstance as the prison facility may not be able to provide the requisite medical attention and diet. While acknowledging that the appellant is serving a lawful sentence, the court balanced this fact against the special circumstances of the appellant's health. The court dismissed the argument regarding apprehension of delay in the appeal, noting that a rapid result initiative would ensure timely hearing. On balance, the court allowed the application for bail pending appeal, subject to conditions.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The appellant Kennedy Otieno Ochieng is admitted to bail of Kshs.200,000 and one surety of a similar amount.
Full Case Text
Judgment text and source record
25 paragraphs
Ochieng & another v Republic (Criminal Case E057 of 2024) [2024] KEHC 13486 (KLR) (29 October 2024) (Ruling)
Neutral citation: [2024] KEHC 13486 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Case E057 of 2024
MS Shariff, J
October 29, 2024
Between
Kennedy Otieno Ochieng
1st Accused
Polycap Otieno Olela
2nd Accused
and
Republic
Prosecution
Ruling
1. I have considered the notice of motion dated 7. 10. 2024, the affidavit in support thereof sworn by the Applicant on even date and the affidavit in reply sworn by Mercy Mwema on 18. 10. 2024.
2. I have also considered the rival submissions of parties and the issue that emerge for consideration is whether the Appellant ought to be admitted to bail pending appeal.
3. This application is premised on the grounds that the Appellant is suffering from a number of ailments, namely diabetes, ulcers and hypertension, which condition it is stated by the Applicant required proper medical management that is not available in prison.
4. The Respondent has valiantly opposed this application on grounds that the Appellant is already a convict and there are no exceptional circumstances demonstrated to warrant his release on bond.
5. I do note that ill health is an exceptional circumstance and I do find that the prison facility may not be able to offer the Appellant the requisite medical attention and diet that he may require.
6. The above finding notwithstanding I cannot overstate the fact that the Appellant is serving a lawful sentence meted upon his conviction wherefore this court has to balance this fact with the special circumstances of the Appellant.
7. Whereas the Appellant has also based this application on a supposed apprehension of delay in the hearing of his appeal, I do find that apprehension to be without basis as this court will be conducting a rapid result initiative in the 1st week of December 2024 wherefore this appeal has no likelihood of delay.
8. On the balance I will allow the application and make the following orders:1. The Appellant Kennedy Otieno Ochieng is hereby admitted to bail of Kshs.200,000 and one surety of a similar amount.
DELIVERED, DATED AND SIGNED THIS 29TH DAY OF OCTOBER, 2024. M. S. SHARIFFJUDGE