[2013] KEHC 1527 (KLR)
The court, after considering the application, the lower court record, and the principles set out in Mwaura v Republic (1986) KLR 600, found that the applicant had an arguable case and that there were no objections from the State. The court exercised its discretion in favour of the applicant, finding that the balance...
Source-derived case information.
- Citation
- [2013] KEHC 1527 (KLR)
- Parties
- Appellant: Thomas Mwanzia Musila; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 103 of 2012
- Procedural Posture
- Criminal Appeal / Bail Pending Appeal
- Outcome
- bail_pending_appeal_granted
- Judges
- BT Jaden
- Legal Topics
- Bail Pending Appeal, Narcotic Offences, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Thomas Mwanzia Musila
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Bail Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to bail pending appeal.
- 2 What principles govern the grant of bail pending appeal.
Ratio Decidendi
The court, after considering the application, the lower court record, and the principles set out in Mwaura v Republic (1986) KLR 600, found that the applicant had an arguable case and that there were no objections from the State. The court exercised its discretion in favour of the applicant, finding that the balance tilted towards granting bail pending appeal. The applicant's fixed abode, willingness to comply with bail terms, and the absence of opposition from the State were persuasive factors. The court therefore ordered the release of the appellant on cash bail.
Court Disposition
bail_pending_appeal_granted
Orders
- The appellant is released on a cash bail of Kshs.50,000.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. 103 OF 2012
REPUBLIC ……………………………………………………… RESPONDENT
VERSUS
THOMAS MWANZIA MUSILA …………… APPELLANT/APPLICANT
R U L I N G
The Appellant, Thomas Mwanzia Musila, was convicted on his own plea of guilty for the offence of being in possession of narcotic drugs to wit fourteen (14) rolls of cannabis sativa (bhang) and sentenced to seven (7) years imprisonment on 12/7/2012.
In an application dated 27/3/2013, the Applicant applied for bail pending appeal. The application is premised on the grounds that the appeal has overwhelming chances of appeal. The Applicant has averred that he has a fixed place of abode and is willing to abide with the terms of bail/bond. The State is not opposed to the application.
I have considered the application. I have also perused the lower court proceedings.
The court has the discretion to grant or refuse bail depending on the circumstances of each case. The court is required to take into consideration settled principles of the law when determining whether or not to grant bail pending the hearing of a criminal case or pending the hearing of an appeal. The principles to be considered by this court in determining whether or not to grant bail were set out in Mwaura v Republic (1986) KLR 600. The said principles include the following; the nature of the offence, the strength of the evidence, the character or behavior or an accused and the seriousness of the punishment to be meted if the accused is found guilty. The primary underlying consideration is whether the accused will turn up at the appointed place and time for his trial. The court further held that in the exercise of its discretion, if certain exceptional circumstances personal to the accused exist which when weighed against the risk of the accused absconding, the balance will tilt in favour of granting bail. Another factor that the court will consider is whether the accused will interfere with witnesses if he is released on bond. Whereas the above principles are applicable in regard to applications made by accused persons seeking to be released on bail pending trial, the same principles are applicable when the court is considering whether to release an Appellant pending the hearing of an appeal.
Having carefully considered the application herein and the entire record of the lower court, it is apparent the Applicant has an arguable case.
I am inclined to grant bail in this case. I order that the Appellant be released on a cash bail of Kshs.50,000/=.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 20thday of September 2013.
………………………………………
B. THURANIRA JADEN
JUDGE