[2021] KEHC 815 (KLR)
The court found that the applicant's motions were not based on the Muruatetu decision, as that precedent is limited to mandatory sentences in murder cases. The main issue is the applicant's request for leave to appeal out of time, which has been delayed due to the unavailability of the original trial records from...
Source-derived case information.
- Citation
- [2021] KEHC 815 (KLR)
- Parties
- Applicant: Dennis Okeno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Petition 69 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Directions on Application for Leave to Appeal Out of Time
- Outcome
- Directions issued for expeditious retrieval of trial records and mention or hearing of the application for leave to appeal out of time.
- Judges
- DN Musyoka
- Legal Topics
- Leave to Appeal Out of Time, Mandatory Sentencing, Application Consolidation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Okeno
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Directions on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal against conviction and sentence out of time.
- 2 Whether the delay in availing the original trial records prejudices the applicant's right to be heard.
Ratio Decidendi
The court found that the applicant's motions were not based on the Muruatetu decision, as that precedent is limited to mandatory sentences in murder cases. The main issue is the applicant's request for leave to appeal out of time, which has been delayed due to the unavailability of the original trial records from Hamisi SRMCCRC No. 713 of 2012. The court recognized that the prolonged delay in availing the trial records is prejudicial to the applicant, as it prevents timely determination of his application. Consequently, the court directed the Deputy Registrar to expedite retrieval of the trial records and to place the matter before a judge for mention or hearing, ensuring that both...
Court Disposition
Directions issued for expeditious retrieval of trial records and mention or hearing of the application for leave to appeal out of time.
Orders
- Deputy Registrar to place the matter before a judge with notice to the parties for mention or hearing.
- Deputy Registrar to send an officer to Hamisi law courts to pick the original records if necessary.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
PETITION NO. 69 OF 2019
AND
MISCELLANEOUS CRIMINAL APPLICATION NO. 101 OF 2019
DENNIS OKENO.......................................................................................PETITIONER
VERSUS
REPUBLIC...............................................................................................RESPONDENT
RULING
1. This matter was placed before me for the purpose of giving directions, in view of the recent decision by the Supreme Court in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others(Amicus Curiae[2021] (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola SSJJ), with respect to mandatory sentences, where it was clarified that the decision, in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), had arisen from proceedings relating to murder, under section 204 of the Penal Code, Cap 63, Laws of Kenya, and the position stated in the said decision was intended to apply only to mandatory sentences with respect to murder cases.
2. The Motion in Petition No. 69 of 2019, is undated, but was filed herein on 20th September 2019, and that in Miscellaneous Criminal Application No. 101 of 2019, is also undated, but was filed herein on 18th November 2019. Both are not founded on the decision, in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the petitioner/applicant seeks leave to file appeal against his conviction and sentence in Hamisi SRMCCRC No. 713 of 2012, out of time.
3. The matter was placed before me on 5th March 2020, and I consolidated the two matters, and directed that the Deputy Registrar calls for the file in Hamisi SRMCCRC No. 713 of 2012. To this day the original trial records from the trial court have never been availed. That has taken too long, and the petitioner is being prejudiced with respect to having his simple application for leave to file appeal being heard and determined.
4. As a way forward, I direct the Deputy Registrar to have this matter placed before the Judge, with notice to the parties, for either mention for directions or for hearing of the Motion for leave to file appeal out of time. If need be, the Deputy Registrar should send an officer to Hamisi law courts, to pick the original records in Hamisi SRMCCRC No. 713 of 2012. The Deputy Registrar shall also cause copies of this ruling to be availed to the applicant and the office of the Director of Public Prosecutions, Kakamega, and the Judicial Officer in charge of the Hamisi Law Courts
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF DECEMBER 2021
W MUSYOKA
JUDGE