[2022] KEHC 12359 (KLR)
The court found that the applicant failed to provide a credible or satisfactory explanation for the inordinate delay of over two years in seeking leave to appeal out of time. The court noted that there was no record of any earlier appeal filed by the applicant, and all such appeals by prisoners are duly processed by...
Source-derived case information.
- Citation
- [2022] KEHC 12359 (KLR)
- Parties
- Applicant: Yusuf Abdi Abonyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E065 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Sentence Reduction, Defilement Offence, Sexual Offences Act, Inordinate Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yusuf Abdi Abonyo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing an appeal out of time.
- 2 Whether the sentence imposed was unlawful or excessive under the Sexual Offences Act.
- 3 Whether the application for leave to appeal out of time is merited.
Ratio Decidendi
The court found that the applicant failed to provide a credible or satisfactory explanation for the inordinate delay of over two years in seeking leave to appeal out of time. The court noted that there was no record of any earlier appeal filed by the applicant, and all such appeals by prisoners are duly processed by the court. The applicant's claim was found to lack honesty and credibility. Furthermore, the sentence of 30 years imprisonment for defilement was within the lawful range prescribed by the Sexual Offences Act and was neither mandatory nor unlawful. The application was deemed mischievous and an afterthought, and thus devoid of merit.
Court Disposition
application dismissed
Orders
- The application filed on 16/6/2022 is dismissed.
- File closed.
Full Case Text
Judgment text and source record
22 paragraphs
Abonyo v Republic (Miscellaneous Criminal Application E065 of 2022) [2022] KEHC 12359 (KLR) (20 June 2022) (Ruling)
Neutral citation: [2022] KEHC 12359 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E065 of 2022
RE Aburili, J
June 20, 2022
Between
Yusuf Abdi Abonyo
Applicant
and
Republic
Respondent
Ruling
1. I have considered the application filed on 16/6/2022 by Yusuf Abdi Abonyo. The application seeks for leave of court to file an appeal out of time on sentence. He claims that he filed an earlier appeal but it cannot be traced.
2. I have perused the Notice of Motion and his allegation that he filed his appeal within time. There is no such record in this court of an appeal filed by the applicant. The sentence, according to the applicant, was passed on 22/5/2020 which is over two years now. The applicant is not honest with the court as all appeals filed by prisoners while in custody are received and processed by this court.
3. In addition, the applicant claims that he will only be seeking for sentence reduction. If the applicant was sentenced to serve 30 years imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, the maximum mandatory sentence under the law is life imprisonment. Thirty (30) years imprisonment is not mandatory and neither is it unlawful.
4. I find this application to be mischievous and an afterthought. The delay is inordinate and is not explained to the satisfaction of this court.
5. The application filed on 16/6/2022 is found to be devoid of any merit and is hereby dismissed.
6. File closed.
7. I so order.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 20TH DAY OF JUNE, 2022R.E. ABURILIJUDGE