[2019] KEHC 3189 (KLR)
The court found that the applicant's delay in filing the appeal was satisfactorily explained by his transfer between prisons and his unrepresented status. The delay was not inordinate, and denying leave would unjustly hinder the applicant's right to appeal. The court exercised its discretion under Section 349 of the...
Source-derived case information.
- Citation
- [2019] KEHC 3189 (KLR)
- Parties
- Applicant: Dennis Odhiambo Okello; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 28 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on 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, Conviction Appeal, Prisoner Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Odhiambo Okello
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for delay in filing the appeal out of time.
- 2 Whether leave to appeal out of time should be granted under Section 349 of the Criminal Procedure Code.
Ratio Decidendi
The court found that the applicant's delay in filing the appeal was satisfactorily explained by his transfer between prisons and his unrepresented status. The delay was not inordinate, and denying leave would unjustly hinder the applicant's right to appeal. The court exercised its discretion under Section 349 of the Criminal Procedure Code to grant leave to appeal out of time, ensuring the applicant's right to access appellate remedies is preserved.
Court Disposition
leave to appeal out of time granted
Orders
- The applicant is granted leave to file his appeal within 14 days of the ruling date.
- The file is closed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL APPLICATION NO. 28 OF 2019
DENNIS ODHIAMBO OKELLO ………………………………. APPLICANT
VERSUS
REPUBLIC ……………………….…………………………… RESPONDENT
RULING ON LEAVE TO APPEAL OUT OF TIME
1. The Applicant/Convict Dennis Odhiambo Okello was on 22. 7.2019 convicted and sentenced to serve 15 years imprisonment by Bondo P.M’s Court in Bondo P.M. (S.O.) case No. 63/2018 for gang rape. He brings this application seeking for leave to appeal out of time.
2. His explanation for the delayed appeal is that he was transferred from Siaya G.K. Prison to Kodiaga before filing his appeal hence the confusion.
3. The prosecution does not oppose the application.
4. I have considered the application by the applicant convict. Under Section 349 of the Criminal Procedure Code, the court to which an appeal is made may for good cause admit an appeal after the period of fourteen days has lapsed and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the applicant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of the applying to the court therefore.
5. There is delay in filing his appeal which ought to have been filed within 14 days from the date of judgment but the delay has been explained and is not inordinate considering the applicant is unrepresented and is in Prison.
6. To enable the applicant convict exercise his right of appeal, the applicant is hereby granted leave to file his appeal within 14 days of today.
7. This file is closed.
8. Orders accordingly.
Dated, signed and delivered at Siaya this 29th day of October, 2019.
R. E. ABURILI
JUDGE
In the presence of:
The applicant in person
Mr Okachi Senior Principal Prosecution Counsel for the State
CA: Brenda and Modestar