[2013] KEHC 4148 (KLR)
The court found that the appellant, having been convicted and sentenced to 20 years imprisonment for defilement, is entitled to apply for bail pending appeal. The State did not oppose the application. The court considered the severity of the sentence and the constitutional right to bail, and determined that...
Source-derived case information.
- Citation
- [2013] KEHC 4148 (KLR)
- Parties
- Appellant: Richard Kiplangat Tonui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 79 of 2012
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- C.N Mutava
- Legal Topics
- Bail Pending Appeal, Defilement Offence, Right to Bail
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Kiplangat Tonui
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant should be admitted to bail pending the hearing and determination of his criminal appeal.
- 2 Whether the refusal by the trial court to allow withdrawal of the charge affects the merits of the appeal.
- 3 What are reasonable bail terms in light of the severity of the sentence and constitutional rights.
Ratio Decidendi
The court found that the appellant, having been convicted and sentenced to 20 years imprisonment for defilement, is entitled to apply for bail pending appeal. The State did not oppose the application. The court considered the severity of the sentence and the constitutional right to bail, and determined that reasonable bail terms should be imposed to secure the appellant's attendance while safeguarding his rights. The court therefore granted bond of Kshs. 500,000 with one surety of a similar amount.
Court Disposition
Application for bail pending appeal allowed.
Orders
- The appellant is admitted to bond of Kshs. 500,000 with one surety of a similar sum.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Kericho
Criminal Appeal 79 of 2012
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RICHARD KIPLANGAT TONUI………...........….APPELLANT
-VERSUS-
REPUBLIC………………………….…………RESPONDENT
RULING
1. The application before me is dated 17th December 2012. The application is brought under Sections 356 and 357 of the Criminal Procedure Act cap 75 of the Laws of Kenya.
2. Through the application, the Applicant Richard Kiplangat Tonui seeks orders of this court admitting him to bond/bail pending the hearing and determination of the appeal herein.
3. The application was filed under certificate of urgency the urgency being that the appellant is already serving sentence and any delay in granting the orders sought would render the appeal nugatory.
4. The grounds upon which the application is based are set out on the face of the application and these are further supported by an affidavit sworn by the Applicant on 17th December 2012. The main ground relied upon is that the complainant in this matter had sought the court’s leave to withdraw the charge but that the trial court declined to record the request. This, in the view of the Applicant renders the appeal as carrying overwhelming chances of success. The Applicant pleads that unless the orders granted, he would suffer prejudice as the appeal would be rendered nugatory.
5. At the hearing of the application, learned counsel for the the Applicant Mr. Ochieng submitted that he was entirely relying on the grounds set out in the application as well as the affidavit in support. On his part, learned counsel for the Respondent Mr. Rogoncho told the court that the State was not opposed to the application.
6. I have considered the application. I make the following view of the same.
7. The appellant was convicted of the offence of defilement contrary to Section 8(1) and (3) of the Sexual Offences Act No. 3 of 2006. He was sentenced to 20 years imprisonment. The Constitution of Kenya, 2010 however makes it the right of an accused person to be admitted to bail. The State does not oppose the application to bail leaving it to this court to set bail terms.
8. This court is enjoined to create a balance that ensures that attendance of an accused person in court is secured while at the same time safeguarding the constitutional right of the applicant to bail through imposition of reasonable bail terms.
9. In the event, given the severity of the sentence the appellant is serving, and in keeping the bail terms reasonable, I am inclined to grant bond to the appellant of Kshs. 500,000/- with one surety of a similar sum.
10. It is so ordered.
DATED, SIGNED AND DELIVERED AT KERICHO THIS 20th DAY FEBRUARY 2013.
J.M. MUTAVA
JUDGE
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