[2012] KEHC 4697 (KLR)
The court found that, although the applicant's own defence confirmed the facts leading to his conviction and thus the appeal against conviction had little chance of success, the applicant was a first offender and the trial court had not been informed of the duration of his clean driving record. This omission could...
Source-derived case information.
- Citation
- [2012] KEHC 4697 (KLR)
- Parties
- Applicant: Samuel Karanja Kimani; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 137 of 2012
- Procedural Posture
- Miscellaneous Application / Application for Bail Pending Appeal After Conviction and Sentence
- Outcome
- Bail pending appeal granted.
- Legal Topics
- Bail Pending Appeal, Dangerous Driving, Sentencing Principles, First Offender Treatment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Karanja Kimani
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Application for Bail Pending Appeal After Conviction and Sentence
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal after conviction for causing death by dangerous driving.
- 2 Whether the appeal has sufficient chances of success to warrant the grant of bail.
- 3 Whether the custodial sentence imposed was manifestly excessive for a first offender.
Ratio Decidendi
The court found that, although the applicant's own defence confirmed the facts leading to his conviction and thus the appeal against conviction had little chance of success, the applicant was a first offender and the trial court had not been informed of the duration of his clean driving record. This omission could potentially affect the appropriateness of the custodial sentence. The court held that there was a real probability of success in the appeal against sentence, and in the interests of justice, bail pending appeal should be granted. The bail terms were enhanced from those at trial to reflect the applicant's convicted status.
Court Disposition
Bail pending appeal granted.
Orders
- The applicant is released on cash bail of KShs.200,000/- or a personal bond of KShs.300,000/- with two sureties of like sum.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC. APPLICATION NO. 137 OF 2012
SAMUEL KARANJA KIMANI .......................................APPLICANT
VERSUS
REPUBLIC..................................................................RESPONDENT
R U L I N G
The applicant, SAMUEL KARANJA KIMANI, was convicted on two (2) counts of causing death by dangerous driving contrary to section 46 of the Traffic Act. For each count, the applicant was sentenced to imprisonment for four (4) years. However, the learned trial magistrate ordered that the sentences would run concurrently.
Being dissatisfied with the conviction and sentence, the applicant has lodged an appeal before the High Court.
After filing the appeal, the applicant also filed an application for the stay of execution of the sentences. In the alternative, the applicant sought bail pending the hearing and determination of the appeal.
Mr. Nderitu, the learned advocate for the applicant, submitted that the applicant’s appeal had high chances of success. He also said that the sentence of 4 years imprisonment was manifestly excessive.
When I asked the applicant to tell me what the maximum sentence was for the offence of causing death by dangerous driving, he told me that the statute prescribed 10 years imprisonment.
Nonetheless, Mr. Nderitu emphasized that the statute did provide for other modes of sentencing, such as the cancellation of the Driving Licence.
Citing the Court of Appeal’s decision in TIMOTHY ORWEYO MISSIANI Vs REPUBLIC CRIMINAL APPEAL No. 39 of 1979, the applicant submitted that a first offender, (such as he was), should not normally be sentenced to imprisonment unless he was intoxicated.
Finally, this court was reminded that during the trial, the applicant was out on bail.
In answer to the application, Ms Mwanza, learned state counsel, submitted that the appeal had no chances of success.
The respondent’s view was that the evidence adduced by the prosecution was water-tight. The respondent also said that the applicant had failed to demonstrate to this court that there were some special circumstances that would warrant the grant of bail.
In the light of the fact that two (2) people lost their lives in the accident caused by the applicant, the respondent argued that the sentence was not only legal, but was definitely not excessive.
In determining the application, this court must apply its mind to the, prima facie, strength of the pending appeal. However, the court must strive to avoid making any explicit findings which may end up forcing the hand of the Judge who will ultimately hear and determine the appeal.
There is no doubt that two pedestrians were knocked down by the vehicle which the applicant was driving. The point of impact was off the road.
The applicant said that he was driving at about 70-100 kph. According to him, he was unable to stop the vehicle in time, after the vehicle ahead of him “stopped suddenly”. He therefore swerved to the left, to avoid hitting that vehicle. As a consequence, the vehicle he was driving hit two (2) pedestrians who were about 3 metres off the road.
As the applicant’s own defence appeared to confirm those facts, which formed the foundation for his conviction, I am unable to share his optimism regarding the chances for the success of his appeal against conviction.
Meanwhile, it is noted that during mitigation, the applicant told the trial court that he has a wife and a child, both of whom depend on him.
In his Petition of Appeal, he said that he had had a clean driving history of “over 10 years”. But in his affidavit in support of the application for bail pending appeal, the applicant said that he had driven on Kenyan roads for “over seven years”.
The point I am making is that when the trial court was handing down the sentences, it had not been told about the duration which the applicant had had a clean driving licence. In other words, the trial court did not know whether the applicant had driven for 7 or 10 years, without ever having had an accident.
Therefore, the trial court cannot be faulted for not taking into account information which was not made available to it, at the time it was making its decision.
Nonetheless, I find, but without making a final determination, that because the applicant was a first offender, the probability of success in his appeal against the custodial sentence is real.
In the circumstances, the interests of justice dictate that I do grant bail pending appeal.
At the trial court, the applicant was granted a personal Bond of KShs.200,000/-, with one surety. At that stage, he was presumed innocent.
Right now, the applicant has been convicted. Therefore, the terms for his bail or bond must be enhanced. Accordingly, I order that the applicant be released on cash bail of KShs.200,000/-, or a Personal Bond of KShs.300,000/- with two (2) sureties of like sum.
Dated, Signed and Delivered at Nairobi this 9th day of May, 2012
.............................
FRED A. OCHIENG
JUDGE