[2021] KEHC 3580 (KLR)
The court found that although the applicant filed the application for leave to appeal within 14 days of sentencing, he did not file a petition of appeal within the statutory period. However, since there was no prejudice to the respondent and the application was made promptly, the court exercised its discretion to...
Source-derived case information.
- Citation
- [2021] KEHC 3580 (KLR)
- Parties
- Appellant: Augustine Onyango Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E006 of 2021
- Procedural Posture
- Criminal Appeal / Application for Leave to Appeal Out of Time
- Outcome
- Leave to appeal out of time granted.
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Robbery With Violence, Criminal Procedure, Sentencing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Augustine Onyango Ochieng
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against conviction and sentence for robbery with violence.
- 2 Whether any prejudice would be occasioned to the respondent by granting leave.
Ratio Decidendi
The court found that although the applicant filed the application for leave to appeal within 14 days of sentencing, he did not file a petition of appeal within the statutory period. However, since there was no prejudice to the respondent and the application was made promptly, the court exercised its discretion to grant leave to the applicant to file his appeal out of time.
Court Disposition
Leave to appeal out of time granted.
Orders
- Leave is granted to Augustine Onyango Ochieng to file his appeal within 14 days of the order.
- Registry to notify the applicant of the order for compliance.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CRIMINAL APPEAL NO. E006 OF 2021
CORAM: HON. R.E. ABURILI, J
AUGUSTINE ONYANGO OCHIENG............................APPELLANT/APPLICANT
VERSUS
REPUBLIC..............................................................................................RESPONDENT
(Being an Application seeking leave to file an Appeal from the Judgment,
conviction and sentence of Bondo Principal Magistrate’s Court
in Cr. Case No. 735 of 2019)
RULING
1. The application by Augustine Onyango Ochieng is for leave to appeal out of time although the file is opened as an appeal file. The application shows that the convict was sentenced to serve 15 years imprisonment upon conviction in each 2 counts of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. Sentenced on 25/5/2021.
2. He filed this application on 3/6/2021 which was within 14 days. He should have simply filed an appeal as he was within time but he is now late as he did not file a petition of appeal. I find no prejudice in according the applicant an opportunity to have his appeal filed out of time.
3. Accordingly, leave is granted to the convict Augustine Onyango Ochieng to file his appeal within 14 days of today.
4. Registry to notify him of this order for compliance.
5. File closed.
6. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 22ND DAY OF SEPTEMBER, 2021
R.E. ABURILI
JUDGE