[2017] KEHC 557 (KLR)
The court found that the applicants failed to demonstrate any exceptional or unusual circumstances to justify the grant of bail pending appeal. The assertion that the appeal had a high probability of success was not substantiated. The court further held that deprivation of liberty at this stage is not prejudicial,...
Source-derived case information.
- Citation
- [2017] KEHC 557 (KLR)
- Parties
- Appellant: Peter Kimanzi Mali; Appellant: Titus Kikuyu Muasya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 48 & 46 of 2016
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Bail Pending Appeal, Exceptional Circumstances, Right to Legal Representation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kimanzi Mali
Appellant
Titus Kikuyu Muasya
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicants have demonstrated exceptional or unusual circumstances warranting grant of bail pending appeal.
- 2 Whether the appeal has a high probability of success justifying release on bail.
- 3 Whether lack of legal representation at trial is a sufficient ground for bail pending appeal.
Ratio Decidendi
The court found that the applicants failed to demonstrate any exceptional or unusual circumstances to justify the grant of bail pending appeal. The assertion that the appeal had a high probability of success was not substantiated. The court further held that deprivation of liberty at this stage is not prejudicial, as the applicants have already been convicted and are no longer presumed innocent. The court also determined that lack of legal representation at trial does not constitute a sufficient ground for bail pending appeal. Additionally, the court noted that the appeal process was already underway and the risk of the appeal being rendered nugatory was not established. Consequently, the...
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL APPEAL NO. 48 OF 2016
CONSOLIDATED WITH
CRIMINAL APPEAL NO. 47 OF 2016
PETER KIMANZI MALII.......................1ST APPLICANT
TITUS KIKUYU MUASYA.....................2ND APPLICANT
VERSUS
REPUBLIC....................................................RESPONDENT
R U L I N G
1. Peter Kimanzi Mali,hereinafter referred to as the 1st Applicant and Titus Kikuyu Muasya,hereinafter referred to as the 2nd Applicant for purposes of their applications dated 13th December, 2016. The Applicants were jointly charged with two Counts of Assault Causing Actual Bodily Harm contrary to Section 251 of the Penal Code. They were tried convicted and sentenced to serve 1½ years imprisonmenton each Count. Sentences were to run consecutively.
2. Being dissatisfied with the conviction and sentence thereof they have appealed and now seek to be released on bail pending Appeal.
3. The Applications are based on grounds that: The Appeal shall be rendered nugatory given the time taken for Appeals to be heard and that the Applicants were not legally represented and it was their Constitutional right to be represented.
4. The applications are supported by affidavits sworn by Vincent Suyianka Lempaa,their Advocate who depones that if the Appeal succeeds it will be rendered nugatory as they will have served most of the sentence term. The Appeal has a high probability of success; they are breadwinners of their family and they did attend court as required while out on bond.
5. At the hearing Counsel for the Applicants, Mr. Lempaareiterated what he stated in the affidavit and submitted further that the Applicants have been serving sentence since 11th August, 2016. There are glaring errors in the decision and they will attend court if admitted on reasonable bail terms.
6. The State through Mr. WanjalaState Counsel opposed the application on the ground that there were no exceptional circumstances demonstrated by the Applicants who are convicts and that the Appeal has no chance of succeeding.
7. In the case of Jivraj Shah vs. Republic,the Court of Appeal held interalia:
“(1) The principle consideration in an application for bail pending appeal is the existence of exceptional or unusual circumstances upon which the Court of Appeal can fairly conclude that it is in the interest of justice to grant bail.
(2) If it appears prima facie from the totality of the circumstances that the appeal is likely to be successful on an account of some substantial point of law to be urged and the sentence or substantial part of it will have been served by the time the appeal is heard and conditions for granting bail will exist.”
8. It has been alleged but not demonstrated that the Appeal has a high chance of succeeding. Therefore, depriving the Appellants herein freedom is not prejudicial to them since they are no longer innocent having been proved guilty by the Lower Court. As correctly submitted by the learned State Counsel, nothing exceptional exists that would move this court to grant the Applicants bail. Lack of representation by a legal representative is not a ground for release on bail. With regard to the Appeal being rendered nugatory I do take note that the Appeals have been presented before court. The record of the Lower Court has been availed. The appeals are due for admission. Had Counsel pursued the process of admission the Appeal could have been heard and judgment delivered. In the circumstances the Appeals will not be rendered nugatory.
9. In the premises I find the application lacking merit. Accordingly, it is dismissed.
10. It is so ordered.
Dated, Signed and Deliveredat Kitui this 17thday of January,2017.
L. N. MUTENDE
JUDGE