Case ID:159255

Silas Amaga Singoro & another v Republic [2020] eKLR

Case Metadata

Case Number:

Miscellaneous Criminal Application 131 of 2020

Parties:

Silas Amaga Singoro & Michael Weche Otwero v Republic

Date Delivered:

02 Jun 2020

Case Class:

Criminal

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Grace Wangui Ngenye-Macharia

Citation:

Silas Amaga Singoro & another v Republic [2020] eKLR

Advocates:

Mr. Mitulla for the Appellants/Applicants.

Miss Akunja for the Respondent

Court Division:

Criminal

County:

Nairobi

Advocates:

Mr. Mitulla for the Appellants/Applicants.

Miss Akunja for the Respondent

History Advocates:

Both Parties Represented

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CRIMINAL APPLICATION 131 OF 2020

1. SILAS AMAGA SINGORO........................................1

ST

APPLICANT

2. MICHAEL WECHE OTWERO................................2

ND

APPLICANT

VERSUS

REPUBLIC........................................................................RESPONDENT

RULING

1. The Applicants have sought bail pending appeal. They were charged with two counts of stealing by servant contrary to

Section 281 of the Penal Code

. The particulars in Count I were that on diverse dates between 16

th

November, 2011 and 24

th

December, 2011 at Equity Bank, Kariobangi and Luanda Branches jointly being servants to Maendeleo Afya Kwa Wote Korogocho Wote from the said Maendeleo Afya Kwa Wote cash ksh. 650,000/ which came into their possession by virtue of their employment. In count II, it was alleged that on 23

rd

August, 2011 at Equity Bank Kariobangi Branch in Nairobi within Nairobi County joined being servants to Maendeleo Afya Kwa Wote stole from the said Maendeleo Afya Kwa Wote cask Ksh. 300,000/ which came to their possession by virtue of their employment.

2. At the conclusion of the trial they were convicted and sentenced to pay a fine of Kshs. 50,000/- in default serve eighteen (18) months imprisonment. In addition they were ordered to pay Kshs. 200,000/- each as compensation to the complainant. They were aggrieved by the decision and sought an appeal.

3. In their application for bail pending appeal dated 1

st

April, 2020 the Applicants made oral submissions supplemental to the Supporting affidavit sworn by the 1

st

Applicant on 1

st

Aril, 2020. It was the submission of counsel for the Applicants, Mr. Mitullah that the appeal stood high chances of success. This was because the sentences passed by the trial contravened

Section 28(2) of the Penal Code

. As well, because there was non-compliance with

Section 106B of the Evidence Act

. Further, that the trial court failed to establish that the Applicants were servants of the complainant. Secondly, that the Applicants were currently serving an illegal sentence owing to this fact and the further fact that the sentences had already been fully satisfied in line with

Section 46 of the Prisons Act

.

4. Miss Nyauncho, counsel for the Respondent, conceded to application. It was her submission that indeed the Applicants were serving an illegal sentence as the sentence passed was incompatible with the law. This was particularly owing to the incompatibility with

Section 28(2) of the Penal Code

as the sentence in default of the fine should not have exceeded 12 months.

5. As to the suitability to be released on bail pending appeal on the ground that the appeal has high chances of success I hold the following view. The court in

Jivraj Shah V R [1986] eKLR

marginally discussed the ground of an exceptional and unusual circumstance to admit an Applicant on bail. In this case, the Applicants' had already served sufficient sentence as at the time they were filing this appeal. This is because they were convicted on 15

th

February, 2019 to serve an 18 months default sentence which was illegal and ought to have been a maximum of 12 months. This then meant that they were supposed to have been released in February 2020 latest. Therefore, this is an exceptional and unusual circumstance warranting the release of the Applicants' on bail.

6. It follows that the application is meritorious. I accordingly confirm the earlier bail terms I had released them on in my extemporal ruling on 19

th

May, 2020 pending the determination the substantive appeal. That is to say that each of the Appellants be and is hereby released on a cash bail of Ksh. 20,000/. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 2ND JUNE, 2020.

G.W.NGENYE-MACAHRIA

JUDGE

In the presence of:

1.

Mr. Mitulla for the Appellants/Applicants.(Applicants present).

2.Miss Akunja for the Respondent.