[2024] KEHC 3756 (KLR)
The court found that although there was a delay from 5th January 2023, the applicant provided a reasonable explanation for the delay, namely, reliance on his family to secure legal representation which did not materialize. Given the seriousness of the offences and the length of the sentence, the applicant deserves...
Source-derived case information.
- Citation
- [2024] KEHC 3756 (KLR)
- Parties
- Applicant: Daniel Otieno Owiti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E022 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave granted to file appeal out of time.
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Conviction and Sentence Challenge, Sexual Offences, Defilement, Deliberate Transmission of Hiv
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Otieno Owiti
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 conviction and sentence.
- 2 Whether the delay in filing the appeal was justified.
Ratio Decidendi
The court found that although there was a delay from 5th January 2023, the applicant provided a reasonable explanation for the delay, namely, reliance on his family to secure legal representation which did not materialize. Given the seriousness of the offences and the length of the sentence, the applicant deserves an opportunity to challenge his conviction and sentence. The court exercised its discretion in favour of the applicant and granted leave to file the appeal out of time, emphasizing the importance of access to justice and the right to appeal in criminal matters.
Court Disposition
Application allowed. Leave granted to file appeal out of time.
Orders
- The applicant is granted leave to file and serve an appeal out of time.
- The appeal must be filed and served within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
25 paragraphs
DOO v Republic (Miscellaneous Criminal Application E022 of 2024) [2024] KEHC 3756 (KLR) (19 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3756 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E022 of 2024
RE Aburili, J
April 19, 2024
Between
DOO
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Senior Principal Magistrate’s Court Criminal Sexual Offences Case No E074 of 2021 at Maseno)
Ruling
1. I have considered the application dated 3rd March 2024 seeking leave of court to file an appeal out of time.
2. The Applicant Daniel Otieno Owiti was convicted and sentenced to serve Fifteen (15) years for the offences of defilement contrary to Section 8(1) and 8(3) of the Sexual Offences Act and deliberate transmission of HIV Contrary to Section 26 (1) of the Sexual Offence Act.
3. He claims that the delay to file appeal was occasioned by his family who promised to get him a lawyer in vain.
4. Despite the delay from 5th January 2023, the Applicant deserves a chance to challenge his conviction and sentence.
5. I grant the Applicant leave to file and file an appeal out of time.
6. The appeal to be filed and served within 14 days of today.
7. Signal to issue.
8. File closed.
9. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 19TH DAY OF APRIL, 2024R. E. ABURILIJUDGE