[2017] KEHC 813 (KLR)
The court found that although the applicant had only served two months of his two-year sentence and the record of appeal was not yet prepared, there was a real risk that he would serve a substantial part of his sentence before the appeal could be heard and determined. While the court did not find overwhelming...
Source-derived case information.
- Citation
- [2017] KEHC 813 (KLR)
- Parties
- Applicant: Wilson Kiprop Korir; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 194 of 2017
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bail Pending Appeal
- Outcome
- Application for bail pending appeal allowed.
- Judges
- RPV Wendoh
- Legal Topics
- Bail Pending Appeal, Criteria for Bail, Conviction Appeal, Sentencing, Stock Theft, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Kiprop Korir
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether the appeal has overwhelming chances of success.
- 3 Whether exceptional or unusual circumstances exist to justify bail pending appeal.
Ratio Decidendi
The court found that although the applicant had only served two months of his two-year sentence and the record of appeal was not yet prepared, there was a real risk that he would serve a substantial part of his sentence before the appeal could be heard and determined. While the court did not find overwhelming chances of success in the appeal nor exceptional or unusual circumstances based on family hardship, it held that the potential prejudice to the applicant if the appeal ultimately succeeded justified the grant of bail pending appeal. The court therefore exercised its discretion to admit the applicant to bond or cash bail on reasonable terms pending the hearing and determination of the...
Court Disposition
Application for bail pending appeal allowed.
Orders
- The applicant may be released on bond of Kshs.150,000 with one surety of like sum or cash bail of Kshs.30,000.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAHURURU
CRIMINAL APPEAL NO.194 OF 2017
WILSON KIPROP KORIR..................................APPLICANT
- V E R S U S –
REPUBLIC........................................................RESPONDENT
R U L I N G
Wilson Kiprop Korir was convicted by Hon. Mukenga on 18/10/2017 for the offence of stealing stock Contrary to Section 278 of the Penal Code.
He was sentenced to serve 2 years imprisonment. He is aggrieved by both the conviction and sentence and has filed this appeal.
By the Notice of Motion dated 20/11/2017, he applies to be admitted to bond or Cash Bail on reasonable terms pending the hearing and determination of the appeal.
The grounds upon which the application is premised are that the appeal is arguable and has overwhelming chances of success; that the appellant is likely to serve a substantial part of the sentence of 2 years before the appeal is heard; that he has a family of a wife and three teenagers in High School.
The application is also supported by the affidavit of the applicant sworn on 20/11/2017. Mr. Muthee counsel who argued the application reiterated the said grounds.
The state was not opposed to the application.
In an application for bail pending appeal the primary consideration is whether the applicant’s appeal has overwhelming chances of success and that principle has been discussed in many decisions. See Ademba v Republic (1983) ICLR 442; Jivraj Shah v Republic (1986) KLR 605 and Somo v Republic (1972) EA 476. In Dominic Karanja v Republic 1986 KLR 612, the Court of Appeal set down the pre conditions for grant of bail pending appeal as follows:
(a) The most important issue was that if the appeal had such overwhelming chances of success, there is no justification for depriving the applicant of his liberty and the minor relevant considerations would be whether there were exceptional or unusual circumstances;
(b) The previous good character of the applicant and the hardships if any facing his family were not exceptional or unusual factors. Ill health per se would also not constitute an exceptional circumstance where there existed medical facilities for prisoners;
(c) A solemn assertion by an applicant that he will not abscond if released, even if it is supported by sureties, is not sufficient ground for releasing a convicted person on bail pending appeal;
(d) Upon considering the relevant material in this case, there was no over whelming chance of appeal being successful.
As held in the above cited case, reasons like having a family which the applicant fends for or illness, is not a reason for grant of bail pending appeal.
I have had a perusal of the judgment of the court and I cannot say that the prosecution case is hopeless or that there was no basis for the conviction.
The appellant was sentenced to 2 years imprisonment on 18/10/2017. So far, he has served only 2 months. The proceedings are not yet typed and the record of appeal is yet to be prepared.
I do agree that the applicant is likely to serve a substantial part of the sentence before the record of appeal is prepared and the appeal heard and determined. The applicant may suffer prejudice if the appeal is ultimately determined in his favour. For that reason alone, I do grant the prayer sought in the application. The applicant may be released on bond of Kshs.150,000/=, with one surety of like sum and cash bail of Kshs.30,000/=.
Dated, Signed and Delivered at NYAHURURU this 20thday of December, 2017.
...........................
R.P.V. Wendoh
JUDGE
Present:
Mr. Mutembei – for prosecution
Mr. Mathee h/b for Mr. Morintat
Applicant – present
Elizabeth – court assistant