[2014] KEHC 3349 (KLR)
The court found that the default sentence imposed by the trial magistrate exceeded the statutory maximum for the offence under Section 313 of the Penal Code and contravened Section 28 of the Penal Code. Additionally, the facts of the case suggested a civil dispute rather than criminal intent. The court assessed that...
Source-derived case information.
- Citation
- [2014] KEHC 3349 (KLR)
- Parties
- Applicant: Peter Francis Kiarie Kamau; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 201 of 2014
- Procedural Posture
- Miscellaneous Application / Application for Bail Pending Appeal
- Outcome
- application allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Bail Pending Appeal, Sentencing Errors, Obtaining by False Pretences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Francis Kiarie Kamau
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the default sentence imposed exceeded the statutory maximum for the offence.
- 3 Whether the facts of the case point to a civil dispute rather than a criminal offence.
Ratio Decidendi
The court found that the default sentence imposed by the trial magistrate exceeded the statutory maximum for the offence under Section 313 of the Penal Code and contravened Section 28 of the Penal Code. Additionally, the facts of the case suggested a civil dispute rather than criminal intent. The court assessed that the appeal had overwhelming chances of success and, therefore, it would be unjust to keep the applicant in prison pending the determination of the appeal. Consequently, the application for bail pending appeal was allowed.
Court Disposition
application allowed
Orders
- The applicant is admitted to bail pending the hearing and determination of his appeal.
Full Case Text
Judgment text and source record
13 paragraphs
IN THE HIGH COURT OF KENYA
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO. 201 OF 2014
PETER FRANCIS KIARIE KAMAU …………………………APPLICANT
VERSUS
REPUBLIC ……………………………………………………RESPONDENT
RULING
This is an application for bail pending the hearing and determination of the appeal filed by the applicant. He was convicted of the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code and sentenced to pay a fine of Kshs. 2,000,000/= in default to serve a period of four years imprisonment.
At this stage the applicant has to demonstrate that his appeal has overwhelming chances of success. It is feared that he may end up serving his sentence before the appeal is heard. A person convicted of an offence under Section 313 of the Penal Code is liable to imprisonment for three years. The learned state counsel concedes that the default sentence imposed by the learned trial magistrate was above the penalty for the offence. That is not enough. Having elected to impose a fine upon the applicant the default sentence could not exceed twelve months in view of the provisions of Section 28 of the Penal Code.
Further, the facts of the case point to a civil dispute as opposed to a criminal intent on the part of the applicant. My assessment of the case is that the appeal stands overwhelming chances of being successful and therefore the applicant should not remain in prison. For those reasons the application was allowed on 16th July, 2014.
Dated and delivered at Nairobi this 31st day of July, 2014.
MBOGHOLI MSAGHA
JUDGE