[2014] KEHC 5141 (KLR)
The court found that the appellants had raised several substantial points of law in their appeals, particularly regarding the sufficiency of evidence and the appropriateness of the charges. The court noted that the appeal had not yet been heard and thus refrained from making conclusive remarks on its merits....
Source-derived case information.
- Citation
- [2014] KEHC 5141 (KLR)
- Parties
- Appellant: Walter Mugaya NgotI; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 533 of 2013
- Procedural Posture
- Criminal Appeal / Ruling on Bail Pending Appeal
- Outcome
- applications for bail pending appeal allowed
- Judges
- J Ngaah
- Legal Topics
- Bail Pending Appeal, Robbery With Violence, Conviction Challenge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Walter Mugaya NgotI
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Pending Appeal
Legal Issues
- 1 Whether the appellants should be admitted to bail pending the hearing and determination of their criminal appeals.
- 2 Whether the grounds of appeal raise substantial points of law that justify bail.
- 3 Whether the evidence on record supports the conviction for robbery with violence.
Ratio Decidendi
The court found that the appellants had raised several substantial points of law in their appeals, particularly regarding the sufficiency of evidence and the appropriateness of the charges. The court noted that the appeal had not yet been heard and thus refrained from making conclusive remarks on its merits. However, the presence of significant legal questions suggested that the appeal was likely to succeed if those questions were resolved in the appellants' favour. Consequently, the court exercised its discretion to grant bail pending appeal, subject to specified conditions.
Court Disposition
applications for bail pending appeal allowed
Orders
- Each appellant shall execute a bond of Kshs. 2,000,000 with two sureties of the like sum.
- Each appellant shall report to the deputy registrar, High Court Murang’a, once every month until their appeals are determined.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN HE HIGH COURT OF KENYA AT MURANG’A
CRIMINAL APPEAL NO. 533 OF 2013
WALTER MUGAYA NGOTI……………………………..APPELLANT
VERSUS
REPUBLIC……………………………………….………RESPONDENT
RULING
The applicant herein together with one Stephen Nderi and one Francis Mbugua were charged with two counts of the offence of robbery with violence contrary to section 296(2) of the Penal Code. In a judgment delivered by the learned magistrate on 13th November, 2013, the three accused persons were convicted on both counts and were sentenced to death.
On 26th November, 2013, the three convicts filed separate appeals against the decision of the learned magistrate and along with their appeals they also filed motions in which they sought from these court orders to be admitted to bail pending the hearing and determination of their appeals.
Perhaps because the appellants were tried and convicted together, the learned counsel for the appellants orally applied and sought to have the appeals consolidated for purposes of determining the applications; the court allowed this application and accordingly, High Court Criminal Appeal Cases Nos. 533 of 2013, 534 of 103 and 535 of 2013 were consolidated for that purpose. High Court Criminal Appeal No. 533 of 2013 in which the application herein was made was adopted as the control or lead file.
When the applications came up for hearing on 30th January, 2013, Mr Kebongo for the appellants argued that the appeal has overwhelming chances of success because, amongst other grounds, the evidence on record did not support the offences with which the appellants were charged. In the main, counsel argued that the complainants were attacked by a mob and it was not clear from the evidence whether the accused persons were part of this mob and what role, if any, each of them played.
Again the appellant’s counsel argued that crucial witnesses who are alleged to have witnessed the attack including a police officer were never called to testify and those who testified contradicted themselves.
Counsel for the state Mr Njeru, conceded to the applications and doubted whether the charges against the appellants were the appropriate charges which should have been instituted against the appellants; in his view, considering the circumstances under which the complainants were attacked, the appellants should have been charged with the offences related to the breach of the peace rather than robbery with violence offences.
I have considered the applications and the respective counsel’s submissions; it appears to me that the appellants have raised several substantial points of law whose determination may very well support the grounds upon which their appeals are based. The appeal itself is yet to be heard and therefore it would be premature to make any conclusive remarks on its fate at this stage. For purposes of determination of this application, all I can say is that in view of the questions that have been raised, the appeal is likely to succeed if those questions will be resolved in favour of the appellants. For this reason I allow the applicants’ applications dated 26th November, 2013 and therefore each one of them will be admitted to bail pending the hearing and determination of their appeals on the following conditions:-
Each of the appellants shall execute a bond of Kshs. 2 Million with two sureties of the like sum.
Each of the appellants shall report to the deputy registrar, High Court Murang’a, once every month until their appeals have been determined.
None of the appellants shall leave the jurisdiction of this honourable court without the court’s prior permission.
For avoidance of doubt this order shall be adopted in High Court Criminal Appeal Cases Nos. 534 of 2013 and 535 of 2013.
Signed, dated and delivered in open court this 7th day of March, 2014
Ngaah Jairus
JUDGE