[2008] KEHC 228 (KLR)
The court held that although the applicant pleaded guilty to both counts, this does not absolutely bar him from appealing against conviction or sentence. The court relied on the authority of Ndede v R (1991) KLR 567 and the provisions of section 348 of the Criminal Procedure Code, which allow for appeals in certain...
Source-derived case information.
- Citation
- [2008] KEHC 228 (KLR)
- Parties
- Appellant: David Ruto Kipkoech; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- ? 11 of 2008
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Leave to Appeal Out of Time, Plea of Guilty, Conviction and Sentence, Constitutional Rights Violation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Ruto Kipkoech
Appellant
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 appeal out of time against conviction and sentence.
- 2 Whether a plea of guilty is an absolute bar to appeal under Kenyan law.
- 3 Whether the applicant's constitutional rights were violated and whether the sentence was excessive.
Ratio Decidendi
The court held that although the applicant pleaded guilty to both counts, this does not absolutely bar him from appealing against conviction or sentence. The court relied on the authority of Ndede v R (1991) KLR 567 and the provisions of section 348 of the Criminal Procedure Code, which allow for appeals in certain circumstances even after a plea of guilty. The court also noted that the state did not oppose the application. In the absence of the original file to verify the production of previous convictions, and considering the applicant's arguments regarding constitutional rights and sentence, the court exercised its discretion to allow the application for leave to appeal out of time,...
Court Disposition
application allowed
Orders
- The applicant is granted leave to file an appeal out of time.
- The appeal must be filed within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Misc. Cr. App. 11 of 2008
DAVID RUTO KIPKOECH ……………..………………APPELLANT
VERSUS
REPUBLIC ….…………………………………………RESPONDENT
RULING
Leave to appeal out of time
Notice of Motion 4th November, 2008
1. On the 13th November, 2008 the applicant/proposed appellant filed a Notice of Motion dated 4th November, 2008 seeking for leave to appeal against the conviction and sentence on two counts brought against him.
2. The first count being
“entering a dwelling house with intent to commit a felony”
The second count being
“indecent (assault) act with a child contrary to section 11(1)of the sexual offences act No. 3 of 2006.
3. The applicant pleaded guilty to both counts and was duly sentenced.
4. The applicant prays to be permitted to appeal out of time as his constitutional rights had been violated and that the sentence was excessive.
1: Arguments by the applicant
5. Although the application was not opposed by the state, the applicant argued that a plea of guilty had been made. This though is not an absolute bar to an appeal. (Ndede v R(1991) KLR 567) Further, the appellant has a good success and chance in the appeal.
The state had no objection to the application and did not intend to oppose it.
III: Opinion
7. This Court is of the opinion that in principle a plea of not guilty should not be allowed on appeal under section 348 of the criminal procedure code. What is in issue is, to produce previous conviction without it being before the court? I do not have the original file to verify this.
I allow the application. That an appeal be filed within 14 days. This though will be subject to admission process of an appeal.
DATED this 16th day of December, 2008 at Kericho
M.A. ANG’AWA
JUDGE
Advocates
W.R. Kiprono instructed by M/S W.R. Kiprono & Co. advocates
for the Applicant
R.K. Koech state counsel instructed by the Attorney General for the state