[2005] KEHC 3240 (KLR)
The court found that the alleged contradictions in the complainant's evidence and the timing of the P3 form did not amount to overwhelming chances of success on appeal. The court held that medical evidence cannot be challenged by submissions of counsel alone and that the P3 form was consistent with the complainant's...
Source-derived case information.
- Citation
- [2005] KEHC 3240 (KLR)
- Parties
- Applicant: Samuel Muchiri Gichuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 74 of 2005
- Procedural Posture
- Miscellaneous Application / Ruling on Bail Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Bail Pending Appeal, Standard of Review, Contradictory Evidence, Medical Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Muchiri Gichuki
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the evidence adduced at trial was so contradictory as to give the appeal high chances of success.
- 3 Whether medical evidence can be challenged by submissions of counsel.
Ratio Decidendi
The court found that the alleged contradictions in the complainant's evidence and the timing of the P3 form did not amount to overwhelming chances of success on appeal. The court held that medical evidence cannot be challenged by submissions of counsel alone and that the P3 form was consistent with the complainant's evidence. As such, the grounds for bail pending appeal were not sustained, and the application lacked merit.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO. 74 OF 2005
SAMUEL MUCHIRI GICHUKI……………………………..APPLICANT VERSUS REPUBLIC ………………………………………………....RESPONDENT
R U L I N G
The Applicant was convicted of the offence of UNNATURAL OFFENCE contrary to Section 163(1) of Penal Code. He was sentenced to serve 7 years imprisonment. He now seeks bail pending his appeal filed asH.Cr. Appeal No. 23 of 2005. The sole ground argued in support of this Application is that the Applicant has high chances of success on basis of contradictory and inconsistent evidence adduced by the Complainant. The application is unopposed.
MR. KAMANGU counsel for the Applicant argued that there was discrepancy in the date the offence was allegedly committed and which put in doubt the findings made by the doctor who filled the P3 form.
This is a very serious offence for which care is called for in handling such an Application. I see from the proceedings that the Complainant in the case was the wife of the Applicant by virtue of having co-habited for a year and having a baby together. I have considered the alleged contradiction highlighted by counsel for the Applicant.
MRS. TOIGAT on her part submitted that in light of the contradictions in the Complainant’s evidence, the State was not opposing the Application.
MR. KAMANGUsubmitted that the P3 form was completed 2 months after the alleged offence. The counsel submitted that the injuries recorded in the P3 form could not have been on the Complainant. Even though MRS. TOIGATdid not respond to that aspect of the Applicant’s submission, it is trite law that medical evidence can only be challenged by other evidence of an expert. It cannot be challenged by mere submission by counsel as attempted herein. Besides the P3 form is in tandem with the Complainant’s evidence and I see no inconsistency in the evidence as alleged.
I do find that there is no overwhelming chance that the Applicant has overwhelming chances of success. The grounds upon which this Application was based have not been sustained. I find no merit in the Application and dismiss it accordingly.
Dated at Nairobi this 29th April 2005.
LESIIT, J.
JUDGE
Read, signed and delivered in the presence of;
LESIIT, J.
JUDGE