[2015] KEHC 5651 (KLR)
The court found that although the delay of two months in filing the appeal was considerable, the applicant's counsel had taken responsibility for the delay, attributing it to personal circumstances. Given the gravity of the offence (robbery with violence) and the severity of the sentence (death), the court held that...
Source-derived case information.
- Citation
- [2015] KEHC 5651 (KLR)
- Parties
- Applicant: Boniface Ondongo Oirere; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 2 of 2015
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- CW Meoli
- Legal Topics
- Leave to Appeal Out of Time, Robbery With Violence, Conviction Appeal, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Ondongo Oirere
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on 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 his conviction and sentence for robbery with violence.
- 2 Whether the delay in filing the appeal was excusable given the circumstances.
Ratio Decidendi
The court found that although the delay of two months in filing the appeal was considerable, the applicant's counsel had taken responsibility for the delay, attributing it to personal circumstances. Given the gravity of the offence (robbery with violence) and the severity of the sentence (death), the court held that it would be unjust to penalize the applicant for his advocate's mistakes. The seriousness of the charge warranted the exercise of judicial discretion in favour of the applicant. Accordingly, the court allowed the application and granted leave to file the appeal out of time, directing that the petition of appeal be filed within 14 days.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file the petition of appeal out of time.
- The petition of appeal shall be filed within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIVASHA
MISCELLANEOUS CRIMINAL APPLICATION NO. 2 OF 2015
BONIFACE ONDONGO OIRERE………...…………………..APPLICANT
-VERSUS-
REPUBLIC….……………………………………………...RESPONDENT
R U L I N G
1. The accused was charged with Robbery with violence Contrary to Section 296 (2) of the Penal Code. He was tried and convicted by the learned Senior Principal Magistrate, Narok. On 19/12/2014 he was sentenced to death.
2. He lodged the present application on 27th February, 2015 seeking leave to file his appeal out of time. The delay according to the depositions in the supporting affidavit was occasioned by the personal circumstances of his advocate.
3. The Director of Public Prosecutions through Ms Kavindu opposed the application. She submitted that the reasons given were not satisfactory and further that the appeal has no chance of success.
4. I have considered the matters canvassed. The delay of two months is quite long. Counsel for the applicant takes responsibility for the delay which he ascribes to his personal circumstances.
5. The accused was convicted on a serious charge. He was sentenced to death. The mistakes, if any or tardiness on the part of his advocate should not be visited upon him in the circumstances of this case.
6. In light of the seriousness of the charges, I would allow the application and direct that the petition of appeal be filed within 14 days of today’s date.
Delivered and signed this 23rd day of March, 2015 in the presence of:
State
Advocate for the Applicant
Court Clerk
C. W. MEOLI
JUDGE