REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII Criminal Appeal 101 of 2009 (From original conviction and sentence in the Senior Resident Magistrate’s Court Keroka Criminal Case No.543 of 2009 – T. WERE Esq., S.R.M) BENARD MOMANYI OBAE …………....……………. APPLICANT VERSUS REPUBLIC …………………………………………RESPONDENT RULING The AppIcant was on 5/5/09 found guilty on own plea of the charge of defilement contrary to sections 8(1) and 8(2) of the Sexual Offences Act No.3 of 2006. He was convicted and sentenced to life imprisonment. The particulars of the charge were that on 18th May, 2009 in Masaba District within Nyanza Province, he unlawfully and intentionally committed an act which caused penetration to the genital organ of C.K. M. a girl aged six years with his genital organ. He filed an appeal against the conviction and sentence. He asked that the conviction be quashed and sentence set aside and that a retrial be ordered or he be set at liberty forthwith. In the interim, the Applicant seeks to be released on bail. He is represented by Mr. Ochwangi and Mr. Mutai represented the Republic. I am aware that after conviction and sentence the Applicant is not entitled to bail. This is because of the presumption that he has been properly convicted and sentenced (Mundia v. Republic [1986] KLR 623). The Applicant must demonstrate that the appeal will have overwhelming chances of success and that his request for bail presents exceptional and unusual circumstances (Somo v. Republic [1972] EA 476). I have considered this application. The Applicant has been shown (through his Birth Certificate) to be a minor, aged 16. If that is true he should not be in jail. I admit him to bail. He will sign bond of Kshs.300,000/= and provide one surety in similar amount. I note that proceedings have been typed. I ask the registry to move with speed and list the appeal for hearing during the next session. Dated and delivered at KISII this 15thDay of June, 2009 A. O. MUCHELULE JUDGE 15/6/2009 Before A. O. Muchelule Judge Mongare c/c.
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Mr. Kemo for State. Mr. Minda for Applicant. Court: - Ruling in open court. A. O. MUCHELULE JUDGE 15/6/09
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