[2014] KEHC 2741 (KLR)
The court found that the appeal had high chances of success after perusing the record of proceedings and the judgment. Additionally, the court noted the risk that the appellant could serve the entire one-year sentence before the appeal is heard and determined. Given these circumstances, and the fact that the...
Source-derived case information.
- Citation
- [2014] KEHC 2741 (KLR)
- Parties
- Appellant: Omar Mwagambere Mwachumba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 137 of 2014
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- bail pending appeal granted
- Judges
- GO Shikwe
- Legal Topics
- Bail Pending Appeal, Neglect to Prevent Felony, Criminal Procedure, Sentencing, Appeal Success Probability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Mwagambere Mwachumba
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant should be granted bail pending the hearing and determination of the appeal.
- 2 Whether the appeal has high chances of success justifying release on bail.
- 3 Whether there is a risk of the appellant serving the full sentence before the appeal is heard.
Ratio Decidendi
The court found that the appeal had high chances of success after perusing the record of proceedings and the judgment. Additionally, the court noted the risk that the appellant could serve the entire one-year sentence before the appeal is heard and determined. Given these circumstances, and the fact that the application was not opposed by the prosecution, the court exercised its discretion to admit the appellant to bail pending appeal. The appellant was therefore granted bond of Ksh. 200,000 with one surety of a similar amount.
Court Disposition
bail pending appeal granted
Orders
- The appellant is admitted to a bond of Ksh. 200,000 with one surety of similar amount.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. 137 OF 2014
( From the original Conviction and Sentence in Criminal Case No. 787 of 2010 in the
Chief Magistrate's Court at Mombasa: Hon. J. Gandani)
OMAR MWAGAMBERE MWACHUMBA................................APPELLANT
VERSUS
REPUBLIC......................................................................RESPONDENT
RULING
The Appellant OMAR MWAGAMBERE was Convicted and Sentenced to one (1) year imprisonment for the offence of neglect to prevent a felony contrary to Section 392 of the Penal Code.
The particulars being that:-
“On the night of 4th and 5th March, 2010 at Shiva Carriers Garage Mombasa County, jointly with others not before the Court being a night security guard of Shiva Carriers Ltd. Parking yard, failed to prevent a commission of a felony namely stealing”.
This is Notice of motion application dated the 16th day of August, 2014 brought under section 357 of the Criminal Procedure Code.
It seeks grant of bail pending hearing of the appeal.
The grounds are that the appeal has a high chance of success.
Secondly, that the Accused was Sentenced to one (1) year imprisonment on 1st August, 2014 and that there is real danger and possibility of him serving the whole imprisonment term before his appeal is heard and determined. This application is not opposed by the director of Public Prosecution.
I have perused the record of proceedings and the Judgment in this case and I am satisfied that the appeal has high chances of success.
The Appellant is admitted to a bond of Ksh. 200,000/= with one surety of similar amount.
Ruling delivered dated and signed this 26th day of September, 2014.
…..................
M. MUYA
JUDGE
26TH SEPTEMBER, 2014
In the presence of:-
Learned Counsel for the appellant Atancha holding brief Lumatete
Learned Counsel for the State Mr. Jami
Court clerk Musundi