[2004] KEHC 1215 (KLR)
The court found that, after reviewing the judgment of the trial court and the petition of appeal, there was insufficient basis to conclude that the appeal had overwhelming chances of success. The applicant's poor health was not considered a sufficient ground for release on bail, as treatment could be provided in...
Source-derived case information.
- Citation
- [2004] KEHC 1215 (KLR)
- Parties
- Applicant: Osborne Mwavishi Sachero; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 102 of 2004
- Procedural Posture
- Criminal Application / Ruling on Application for Bail Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Bail Pending Appeal, Exceptional Circumstances, Overwhelming Chances of Success
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Osborne Mwavishi Sachero
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant has demonstrated overwhelming chances of success in the appeal to warrant bail pending appeal.
- 2 Whether exceptional or unusual circumstances exist to justify granting bail pending appeal.
Ratio Decidendi
The court found that, after reviewing the judgment of the trial court and the petition of appeal, there was insufficient basis to conclude that the appeal had overwhelming chances of success. The applicant's poor health was not considered a sufficient ground for release on bail, as treatment could be provided in prison. The court also noted that the sentence of four years was not so short as to risk the applicant serving the entire term before the appeal could be heard, and there was no reason the appeal could not be determined within a reasonable time. Consequently, the application for bail pending appeal was rejected.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is rejected.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPLICATION NO. 102 OF 2004OSBORNE MWAVISHI SACHERO……………….APPLICANTVERSUSREPUBLIC………………………………….……….RESPONDENTRULING
The appellant filed an application for bail pending appeal with an alternative prayer that the court be pleased to suspend the execution of the sentence in Chief Magistrate’s Criminal Case No. 1020 of 2002 pending the hearing and determination of an appeal against conviction and sentence in the above matter.
The application was made on the grounds that the appeal had overwhelming chances of success and that it was highly probable that by the time the applicant’s appeal was heard and determined he would have served the whole sentence. The applicant was sentenced to four years imprisonment on 7th July, 2004.
Mr. Githirwa for the applicant argued that the trial magistrate over relied on the evidence of a collaborator. He further submitted that the applicant was in very poor health and feared that he might die in prison before his appeal was heard.
Mr. Gumo, Assistant Public Prosecutor opposed the application saying that there was nothing to show that the applicant’s appeal had overwhelming chances of success. No exceptional circumstances had been shown to warrant the applicant’s release on bail pending appeal.
In SOMO VS REPUBLIC [1972] E.A. 476 it was held that an applicant for bail pending appeal has to show that his appeal has overwhelming chances of success and that there were exceptional or unusual circumstances that existed in his application.
I have perused the judgment of the trial court and the petition of appeal and from the two documents, I am not satisfied that the appeal has overwhelming chances of success. Unfortunately counsel did not annex to his application a record of the proceedings.
The fact that the applicant is in poor state of health is not in itself a sufficient ground upon which he should be released on bail pending appeal because he can be treated while he is in prison.
The applicant’s sentence is also fairly long – 4 years, and there is no reason why his appeal cannot be heard within a reasonable time. All in all, the application for bail pending appeal is rejected.
DATED, SIGNED & DELIVERED at Nakuru this 30th September, 2004.
DANIEL MUSINGA
AG. JUDGE
30/9/2004
DANIEL MUSINGAAG. JUDGE30/9/2004