[2017] KEHC 1682 (KLR)
The court found that the application for bond pending appeal was not properly before it because it was brought by way of a miscellaneous application rather than within a substantive appeal. The court could not establish from the record whether an appeal had been filed or leave to appeal out of time had been granted....
Source-derived case information.
- Citation
- [2017] KEHC 1682 (KLR)
- Parties
- Applicant: Samson Maina; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Case 6 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Bond Pending Appeal
- Outcome
- application struck out
- Judges
- RPV Wendoh
- Legal Topics
- Bond Pending Appeal, Defilement Offence, Sexual Offences Act, Procedural Irregularity
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Maina
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Bond Pending Appeal
Legal Issues
- 1 Whether the application for bond pending appeal is properly before the court.
- 2 Whether a miscellaneous application can be used to seek bond pending appeal without a substantive appeal on record.
Ratio Decidendi
The court found that the application for bond pending appeal was not properly before it because it was brought by way of a miscellaneous application rather than within a substantive appeal. The court could not establish from the record whether an appeal had been filed or leave to appeal out of time had been granted. As such, the court declined to consider the merits of the application for bond and struck out the Chamber Summons as procedurally improper.
Court Disposition
application struck out
Orders
- The Chamber Summons seeking bond pending appeal is struck out.
- Prayer for bond pending appeal is declined.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAHURURU
MISC. CRIMINAL CASE NO.6 OF 2017
SAMSON MAINA.....APPELLANT/APPLICANT
V E R S U S
REPUBLIC....................................RESPONDENT
R U L I N G
The applicant herein is Samson Maina who was convicted and sentenced to 20 years imprisonment by Hon. Wanjala (C.M.) for an offence of defilement Contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006.
Before me is a Chamber Summons Application dated 22/3/2017, filed by Murindi Advocate on behalf of the applicant. He seeks the following prayers:
(2) That the applicant be granted bond pending hearing of Criminal Appeal No.142 of 2017;
(3) Any other orders for securing the applicant’s attendance.
When the Applicant’s Counsel appeared before me on 30/3/2017, he argued an application for bond pending appeal. Mr. Mutembei, the State Counsel did not oppose the application. I notice that in the Certificate of Urgency, the applicant was seeking leave of the court to file appeal out of time but that was not one of the prayers in Chamber Summons dated 22/3/2017. What is before me is a Miscellaneous Application. An application for bond cannot be brought in a Miscellaneous Application. There must be an existing substantive appeal in which such application can be made. Counsel referred to Criminal Appeal No.142 of 2017 but this court cannot establish whether the applicant had been granted leave to file appeal out of time and/or that an appeal has indeed been filed. The court is unable to determine that from the proceedings before the court.
Since the Chamber Summons seeking bond is not properly before this court, it would be a waste of court’s time to consider the application for bond pending appeal in the form in which it is filed and the court hereby declines to grant the prayer for bond and strike out the Chamber Summons.
………………………………..
R.P.V. Wendoh
JUDGE
Dated, Signed and Delivered at NYAHURURU this 2nd day of May, 2017.
PRESENT:
Mr. Mong’are - for prosecution counsel
Mr. Mbugua holding brief for Mr. Mutindi Advocate for applicant
Soi - Court Assistant