[2020] KEHC 912 (KLR)
The court found that the conditions for granting bail pending appeal, as established in Jivray Shah v R and Chambhai v R, had not been fulfilled by the appellant. Specifically, the court was not satisfied that there were exceptional or compelling circumstances to justify the grant of bail, nor was it convinced that...
Source-derived case information.
- Citation
- [2020] KEHC 912 (KLR)
- Parties
- Respondent: Republic; Appellant: Omar Yakub Athman
- Court
- High Court
- Court Station
- High Court at Garsen
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E001 of 2020
- Procedural Posture
- Criminal Appeal / Application for Bail Pending Appeal
- Outcome
- application denied
- Judges
- DB Nyakundi
- Legal Topics
- Bail Pending Appeal, Appellate Review, Exceptional Circumstances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Omar Yakub Athman
Appellant
Procedural Posture
Criminal Appeal / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending the hearing and determination of the appeal.
- 2 Whether there are exceptional or compelling circumstances to justify granting bail pending appeal.
- 3 Whether the appeal has high chances of success.
Ratio Decidendi
The court found that the conditions for granting bail pending appeal, as established in Jivray Shah v R and Chambhai v R, had not been fulfilled by the appellant. Specifically, the court was not satisfied that there were exceptional or compelling circumstances to justify the grant of bail, nor was it convinced that the appeal had high chances of success. The court emphasized that bail pending appeal is not a right and must be granted only when the established legal tests are met. As these requirements were not satisfied, the application for bail pending appeal was denied.
Court Disposition
application denied
Orders
- The motion dated 29.10.2020 for bail pending appeal is denied.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARSEN
CRIMINAL APPEAL CASE NO. E001 OF 2020
REPUBLIC.............................................................................PROSECUTOR
VERSUS
OMAR YAKUB ATHMAN...........................................................ACCUSED
Coram: Hon. Justice R. Nyakundi
Mr. Mwangi for state
Aboubakari Advocate for accused person
RULING
The appellant seeks a single relief from this Court namely:
(1). The Honourable Court be pleased to grant bail to the applicant pending the hearing and determination of the appeal.
In order to appreciate the ensuing issues, the applicant filed an affidavit in support of the application.
Arguments by counsel for the appellant begins his arguments as premised in the motion that the appeal in question has high chances of success. Counsel further stated that the relief for bail is of immense importance for reasons that the appeal may take long and likely to prejudice the appellant if he continues to serve the impugned sentence.
The respondent counsel did not put up any meaningful contest to the appellant’s notice of motion in respect of this, it does not follow that the application is summarily meritorious. In short, the Court has to appraise the record and in view of the evidence allow or decline bail pending appeal.
Determination
I have carefully considered the application for bail pending appeal together with the affidavit evidence. Needless, to say that the trial Court record and subsequent Judgment forms the basis and emphasis on pertinent issues such as:
(1). The likelihood of success of the appeal.
(2). That there may be little chances that the appeal would be determined expeditiously.
(3). That in the application for bail pending appeal there are compelling and exceptional circumstances dependent on the facts of the case to grant bail to the appellant pending the hearing and determination of his appeal.
In determining whether to grant bail pending appeal, the Court is required to perform a balancing exercise. Leave of the Court for a convict to be released on bail pending appeal could not be granted readily, until the test in the case of Jivray Shah v R {1986} KLR 605 and Chambhai v R {1971} EA 343 has been discharged.
In instant application these conditions have not been fulfilled. Having inquired to all the circumstances and being mindful of the purpose of bail pending appeal, I am of the option that right is not available to the applicant. The upshot is the motion dated 29. 10. 2020 is denied.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 18TH DAY OF DECEMBER 2020
............................
R. NYAKUNDI
JUDGE