[2011] KEHC 578 (KLR)
The court found that the likelihood of the 2nd accused absconding if released on bail was very high, given that he had already been convicted and sentenced to death, the harshest punishment under Kenyan law. The court also found no overwhelming chance of success in the appeal after reviewing the judgment....
Source-derived case information.
- Citation
- [2011] KEHC 578 (KLR)
- Parties
- Applicant: Republic; Respondent: Joseph Indeche
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 7 of 2005
- Procedural Posture
- Criminal Case / Ruling on Application for Bail Pending Appeal
- Outcome
- application for bail pending appeal denied
- Legal Topics
- Bail Pending Appeal, Right to Bail, Risk of Absconding
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Joseph Indeche
Respondent
Procedural Posture
Criminal Case / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the 2nd accused should be released on bail pending the hearing of his appeal.
- 2 Whether there are exceptional circumstances justifying release on bail after conviction for murder.
Ratio Decidendi
The court found that the likelihood of the 2nd accused absconding if released on bail was very high, given that he had already been convicted and sentenced to death, the harshest punishment under Kenyan law. The court also found no overwhelming chance of success in the appeal after reviewing the judgment. Consequently, the court held that there were no exceptional circumstances to justify granting bail pending appeal and denied the application, ordering that the 2nd accused remain in custody pending the determination of his appeal.
Court Disposition
application for bail pending appeal denied
Orders
- The application for bail pending appeal is denied.
- The 2nd accused shall remain in custody pending the hearing and determination of his appeal to the Court of Appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL CASE NO. 7 OF 2005
REPUBLIC..................................................................................................................PROSECUTOR
V E R S U S
ZABLON SHIKUNZI...................................................................................................1ST ACCUSED
JOSEPH INDECHE....................................................................................................2ND ACCUSED
JOSHUA MBOYA......................................................................................................3RD ACCUSED
PIUS MOTOKA LUMUMBA......................................................................................4TH ACCUSED
PATRICK SHIKANGA LIKHOTIO.............................................................................5TH ACCUSED
JOHN IMBUKA OLULU..............................................................................................6TH ACCUSED
R U L I N G
The 2nd accused was convicted of the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He was sentenced to death as is mandatory provided by the law.The 2nd accused has lodged an appeal to the Court of Appeal challenging his conviction and sentence. He has filed an application pursuant to Article 49 of the Constitution that he be released on bail pending the hearing of his appeal. In the application, he claimed that his appeal has a high chance of success because he was unlawfully convicted and sentenced to serve an illegal sentence. The application is supported by the annexed affidavit of Joseph A. Indeche, the 2nd accused.
During the hearing of the application, the 2nd accused urged the court to release him on bail pending the hearing of his appeal because he needed to get out so that he can take care of members of his family as he awaits the hearing of his appeal. Mr. Limo for the State opposed the 2nd accused being released on bond pending the hearing of the appeal on the ground that due to the fact that the 2nd accused had been convicted and sentenced to death, the likelihood of him absconding was high. He urged the court to reject the application.
This court has carefully considered the rival arguments put forward in this case. Article 49(1)(h) of the Constitution grants the right to an accused person to be released on bail or bond pending the hearing and determination of his case or his appeal. There are principles which this court must consider before it can grant the 2nd accused bond pending appeal. The court must assess the likelihood of the applicant absconding if he is released on bond. It must also evaluate if there are any exceptional circumstances that will militate against the applicant being released on bond. In the present application, it is clear that the chances of the 2nd accused absconding, if he is released on bond, are very high. This is because the 2nd accused has already been convicted and sentenced to suffer the harshest of any punishment available in our statutes, the sentence of death. Having read the judgment of the court, this court is unable with absolute certainty, agree with the 2nd accused that his appeal has overwhelming chances of success.
In the premises therefore, this court finds no merit with the 2nd accused’s application to be released on bail pending the hearing of his appeal. The application is denied. The 2nd accused shall remain in custody pending the hearing and determination of his appeal to the Court of Appeal.
DATED AT KAKAMEGA THIS 28TH DAY OF JULY 2011
L. KIMARU
J U D G E