[2013] KEHC 5092 (KLR)
The court found that the appellant had not demonstrated overwhelming chances of success in the appeal, as the evidence from the complainant indicated repeated sexual encounters while she was underage, which is outlawed by law regardless of consent. The court also noted that the appeal would be heard before the...
Source-derived case information.
- Citation
- [2013] KEHC 5092 (KLR)
- Parties
- Appellant: Samuel Ithagi Muhira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 184 of 2012
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- J Wakiaga
- Legal Topics
- Bail Pending Appeal, Sexual Offences, Sentencing, Standard for Granting Bail
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Ithagi Muhira
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on 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 the appeal has overwhelming chances of success to justify release on bail.
- 3 Whether exceptional or unusual circumstances exist to warrant the grant of bail pending appeal.
Ratio Decidendi
The court found that the appellant had not demonstrated overwhelming chances of success in the appeal, as the evidence from the complainant indicated repeated sexual encounters while she was underage, which is outlawed by law regardless of consent. The court also noted that the appeal would be heard before the appellant served a substantial part of the sentence, and no exceptional or unusual circumstances were established. Consequently, the application for bail pending appeal lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
High Court at Nyeri
Criminal Appeal 184 of 2012 [if gte mso 9]><xml>
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SAMUEL ITHAGI MUHIRA...….………................................…APPELLANT
Versus
REPUBLIC …...................……….………......……...........….RESPONDENT
RULING
1. The application before the court is for bond/bail pending the hearing and determination of the appeal.
2. It is grounded upon the grounds that the appeal might take long to be heard and that the appeal has overwhelming chances of success and has raised substantial points of law which may result in the conviction being quashed and sentence set aside.
3. It was submitted by Mr. Maina on behalf of the applicant that there is a likelihood of the same serving substantial part of the sentence before the appeal is heard and that the appellant was out on bond doing the trial
4. It was further submitted that the appeal has overwhelming chances of success since the P.W.5 confirmed under cross examination that he could not arrive to any conclusion that there was any penetration.
5. Miss Kitoto for the state opposed the application and submitted that the complainant testified that she spent five days with the appellant and the medical evidence stated that her hymen was broken and there was virginal tear.
6. She submitted that the appellant was sentenced for 20 years and will not have served substantial part of the same by the time the appeal is heard.
7. It should be pointed out that the Court of appeal in DOMINIC KARANJA V. R [1986] KLR 612 at page 613 expressed it self on this issue as follows
“The most important issue here is if the appeal has such overwhelming chances of success that there is no justification for depriving the applicant of his liberty. The minor relevant consideration would be whether there are exceptional or unusual circumstances. The previous good character of the applicant …............is not an exceptional or unusual circumstances.”
8. I have looked at the proceedings before the trial court and note that the appellant was sentenced to 20 years and going by the record of this court this appeal shall be heard before the appellant serves substantial part thereon.
9. On the issue of overwhelming chances of success I have noted the evidence of P.W.1 as follows:
“We slept together in one bed and we had sex... I stayed in his house for five days. We were having sex during all those days........ I am aged 16 years now but during that time I was 15 years.”
10. I note the sexual encounter might have been consensual but the law outlaws the same and therefore the appellant might have an uphill task in succeeding in the appeal herein .
11. I therefore find no merit in the application herein and dismiss the same.
Dated at Nyeri this 21st day of February 2013.
J. WAKIAGA
JUDGE
Mr. Maina for Maina Karingithifor the appellant
Mr. Cheboi for the state.
Ruling read in open court in the presence of the above.