[2009] KEHC 4072 (KLR)
The court found that there were no exceptional circumstances presented by the appellant to justify granting bail pending appeal. The court also determined that the appeal did not have overwhelming chances of success, and noted that appeals are now being heard expeditiously, reducing the risk of the appellant serving...
Source-derived case information.
- Citation
- [2009] KEHC 4072 (KLR)
- Parties
- Appellant: Sisto Kimaru Kingara; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 294 of 2008
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Bail Pending Appeal, Burden of Proof, Conviction Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sisto Kimaru Kingara
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant should be granted bail pending the hearing and determination of his criminal appeal.
- 2 Whether there are exceptional circumstances or overwhelming chances of success in the appeal to justify bail.
Ratio Decidendi
The court found that there were no exceptional circumstances presented by the appellant to justify granting bail pending appeal. The court also determined that the appeal did not have overwhelming chances of success, and noted that appeals are now being heard expeditiously, reducing the risk of the appellant serving his sentence before the appeal is determined. Consequently, the application for bail pending appeal was dismissed.
Court Disposition
application dismissed
Orders
- The notice of motion dated 21st November 2008 is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 294 of 2008
SISTO KIMARU KINGARA ……....……………… APPELLLANT
Versus
REPUBLIC ……………………………………….. RESPONDENT
RULING
The appellant has filed a notice of motion brought under Section 357 (1) of the Criminal Procedure Code. He seeks that he be admitted to bail pending the hearing and the determination of this appeal the application is supported by an affidavit sworn by his counsel. His counsel deponed that the appellant was convicted by the lower court on 2 charges of obtaining money by false pretences contrary to Section 313 of the Penal Code. He deponed that the appellant has overwhelming chances of success in that the lower court case should have been resolved in his favour. That the learned trial magistrate erred in shifting the burden of proof from the prosecution to the appellant. The application was opposed by the learned state counsel who began by stating that the practice now presently in this court has been to hear appeals expeditiously. He therefore was of the view that the appellant need not be granted bail since the appeal is likely to be heard soon. He further stated that the part in which the appellant played in the lower court case and the grounds of appeal raised by him show that he is relying on facts and not on law in his appeal. I have considered the appellants application. Indeed as correctly stated the most important issue is whether the appeal has overwhelming chances of success. If there are high chances of success then there would be no justification for depriving the appellant of his liberty. In the case of MUNDIA V REPUBLIC (1986) KLR PAGE 623 the court held as follows:-
“1. The Criminal Procedure Code (Cap 75) Section 356 permitsadmission to bail pending appeal.
2. Admission to bail pending appeal is a discretionary power which the court must exercise judicially in accordance with laid down principles.
3. Once a person has been convicted and sentenced, his application for bail pending appeal will be granted only in exceptional circumstances.
4. There is a presumption that once a person is convicted he was properly convicted.
5. The chances of the appeal succeeding is a factor for consideration in arriving at a decision in an application for bail pending appeal.
6. Bail pending appeal may be granted where there is a risk that the sentence will have been served by the time the appeal will be heard but there must exist the major issue of overwhelming chances of the appeal in the first instance.”
I have considered the lower court’s evidence. I have also considered the appellants application and the affidavit in support. I find that there is no exceptional circumstance to move this court to grant bail pending appeal. As correctly stated by the Learned State Counsel the appeals in this court are now being heard expeditiously. For that reason and because I am of the respective view that the appeal does not have overwhelming chance of success I do hereby dismiss the notice of motion dated 21st November 2008.
Dated and delivered this 27th day of January 2009
MARY KASANGO
JUDGE