[2008] KEHC 3722 (KLR)
The court held that the applicant failed to demonstrate that his appeal had overwhelming chances of success, as required for bail pending appeal. The court further found that the applicant's claim of ill-health did not amount to an exceptional circumstance since there was no evidence that his condition could not be...
Source-derived case information.
- Citation
- [2008] KEHC 3722 (KLR)
- Parties
- Appellant: Republic; Respondent: Nahashon Murungi M’Itaya
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 16 of 2007
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- SP Ouko
- Legal Topics
- Bail Pending Appeal, Standards for Granting Bail, Burden of Proof on Applicant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Nahashon Murungi M’Itaya
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success.
- 3 Whether exceptional or unusual circumstances exist to warrant grant of bail pending appeal.
Ratio Decidendi
The court held that the applicant failed to demonstrate that his appeal had overwhelming chances of success, as required for bail pending appeal. The court further found that the applicant's claim of ill-health did not amount to an exceptional circumstance since there was no evidence that his condition could not be managed within the prison medical facilities. Additionally, the court determined that the four-year sentence was not so short as to risk being substantially served before the appeal could be heard. Consequently, the application for bail pending appeal lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Criminal Appeal 16 of 2007
REPUBLIC ………………….…………….…………...……..APPELLANT
VERSUS
NAHASHON MURUNGI M’ITAYA ………...........………RESPONDENT
R U L I N G
The applicant was initially tried and acquitted by the court below for the offence of assault causing grievous harm contrary to Section 234 of the Penal Code.
The State was dissatisfied with the acquittal and filed an appeal challenging the same. The appeal was allowed and the applicant found guilty, convicted and sentenced to four (4) years imprisonment.
The applicant being aggrieved has filed a notice of appeal against the decision of this court.
In the meantime he seeks to be admitted to bail pending the hearing and determination of the appeal.
In the motion the applicant relies on the grounds that unless the application is granted he stands to serve before his appeal is heard thereby rendering the appeal nugatory. It is also averred that the appeal has overwhelming chances of success. That the applicant is sickly.
Counsel for the respondent opposed the application arguing that there is no likelihood of the applicant serving the term before the appeal is heard. That the appeal does not stand any chance in the Court of Appeal.
I have considered these arguments and the single authority cited, Joseph Kaibunga V R, Criminal Appeal No. MERU 16 of 2006.
Section 357 of the Criminal Procedure Code, under which this application is made gives this court jurisdiction to grant bail to the applicant pending the hearing and determination of his appeal.
It is now settled on the authority of Dominic Karanja V R (1986) KLR 612 that an application for bail pending appeal will be granted where it can be demonstrated that the appeal has overwhelming chances of success; where there are exceptional or unusual circumstances, and the likelihood of the applicant serving the entire or substantial part of the sentence.
Where the application is brought before the court whose decision is the subject of appeal, it is fallacious to expect that court to hold that the appeal has overwhelming chances of success.
Be that as it may, it is my opinion that the appeal does not have any chances of success.
It is important that the applicant proves that his appeal has overwhelming chances of success because having been convicted by a court of competent jurisdiction, the applicant loses the presumption of his innocence.
The applicant herein has failed to demonstrate the chances of success his appeal stands. The applicant has deposed that he suffers ill-health and has annexed treatment notes. In Dominic Karanjacase, (supra) it was held that ill-health per se does not constitute an exception a circumstance where there are medical facilities for prisoners.
The treatment notes do not indicate how serious the applicant’s condition is or how that condition is affected by his incarceration.
Finally a sentence of 4 years is not likely to be served or substantial part of it before the appeal is heard.
I find no merit in the application which is hereby dismissed.
Dated and delivered at Meru this 1st.day of February..2008.
W. Ouko
JUDGE