Joseph Kioko v Republic 2012 eKLR

Seat of court
Date of opinion

This case is an application for bail pending appeal.
The applicant, through his advocate, brought forth an affidavit sworn on 26 June 2012 where the applicant was sentenced on 20 June 2012 to serve 20 months in prison, which he has appealed against conviction and sentence. Furthermore, it stated that the appeal has an overwhelming chance of success as well as that if the applicant was not released on bail or bond, he is likely to serve the sentence before the appeal is heard and determined.
The advocate for the applicant submitted that the sentences imposed were not clear as to whether they were consecutive or concurrent. Also, that the facts did not disclose any offence - arguing that in any case the applicant should have been fined.
The Learned State Counsel opposed the application, stating that the appeal was merely arguable and no overwhelming chances of success had been demonstrated. The Counsel stated that the applicant had pleaded guilty in Kikamba language. Finally, the Counsel stated that if there was an error in the sentencing, the same was correctable under Section 382 of the Criminal Procedure Code. Otherwise, the appeal can also be heard on priority basis due to the short sentence imposed.
In the case Somo v Republic 1972, the High Court held that the most important ground for arguing bail pending appeal, is that the appeal has an overwhelming chance of being successful, and in that case giving no justification for depriving the applicant of his freedom.
The Court reasoned:
Concerning the appeal itself - the appellant was charged with three counts under the Wildlife Conservation and Management Act (CAP 376). These charges were read and explained to the appellant, as well as been recorded as having stated in kikamba language that "it is true". After the prosecutor gave the facts, the appellant said they are true and he was convicted and sentenced.
However, in giving the summary of the facts, the prosecutor did not state whether the appellant was in possession, or was a dealer, or knew and failed to make a report to the authorities on the whereabouts of the trophies in question. Since it is therefore unsure whether the prosecution disclosed any offence when giving a summary of the facts, the appeal has an overwhelming chance of success.
The Court therefore granted bail pending appeal to the applicant. (Provided by: UNODC SHERLOC)

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