ABRAHAM KIBET CHERUIYOT v REPUBLIC [2011] KEHC 3289 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CRIMINAL APPEAL NO. 1 OF 2011

BETWEEN

ABRAHAM KIBET CHERUIYOT:::::::::::::::::::::::::::::::::::::::::::APPELLANT

AND

REPUBLIC::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

RULING

Abraham Kibet Cheruiyot, the appellant, was convicted of defilement contrary to section 8(4) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve fifteen (15) years imprisonment in Iten Senior Resident Magistrate’s Court Criminal Case No.645 of 2009. He was dissatisfied with the conviction and sentence and has appealed to this court. He now applies for bail pending his appeal.In the supporting affidavit, sworn by his counsel, Mr. Kitigin, it is deponed, inter alia, that the health of the appellant is rapidly deteriorating necessitating admission to Naivasha Hospital.

When the application was canvassed before me on 17th March, 2011, Mr. Kitigin submitted that the appellant’s appeal has overwhelming chances of success and that the threshold set in the case of Dominic -VS- Republic (1986) KLR 612 had been met.

Mr. Oluoch, Learned Senior Deputy Prosecution Counsel, did not agree with Mr. Kitigin. In his view, the appeal has no chance of success at all and further that no exceptional circumstances had been demonstrated to warrant the release of the appellant on bail pending his appeal.

I have considered the application, the supporting affidavit and the submissions of counsel. Having done so, I take the following view of the matter.   The most important consideration in an application for bail pending appeal is whether the appeal has overwhelming chances of success.   The second, but less important, issue to be considered is whether there are exceptional or unusual circumstances.   The appellant has alleged that his health has deteriorated since his incarceration. He has however, not exhibited any documentary evidence of his medical condition.   He has therefore not demonstrated exceptional circumstances.

With regard to whether the appeal has overwhelming chances of success I have come to the conclusion that the appeal indeed has such chances given the evidence on record. I cannot therefore deny the appellant the order he has urged before me.

The application dated 20th February, 2011 is allowed in terms of prayer 2 thereof. The appellant may be released on bond of Kshs. 300,000/- with a surety of similar amount pending hearing and determination of his appeal.

In view of my above findings, this appeal is admitted to hearing before a single judge at this station for one hour.

Order and directions accordingly.

DATED AND DELIVERED AT ELDORET

THIS 7TH DAY OF APRIL 2011

F. AZANGALALA

JUDGE

Read in the presence of:-

Mr. Kitigin for the appellant/applicant and

Mr. Oluoch for the State.

F. AZANGALALA

JUDGE

7th April, 2011