[2018] KEHC 4688 (KLR)
The court found that the applicant failed to identify any question of law proper for determination by the Court of Appeal, which is a mandatory requirement for a second appeal. The court further held that the applicant did not provide sufficient material to demonstrate that he lacked the means to pay for the...
Source-derived case information.
- Citation
- [2018] KEHC 4688 (KLR)
- Parties
- Applicant: Emmanuel Ouma Oyoo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 41 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time and Leave to Appeal as a Poor Person
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Incest Offence, Sexual Offences Act, Appeal Out of Time, Leave to Appeal, Poor Person Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Ouma Oyoo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time and Leave to Appeal as a Poor Person
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for extension of time to file a notice of appeal out of time.
- 2 Whether the applicant qualifies for leave to appeal as a poor person under the relevant legal provisions.
- 3 Whether any question of law has been raised to warrant a second appeal to the Court of Appeal.
Ratio Decidendi
The court found that the applicant failed to identify any question of law proper for determination by the Court of Appeal, which is a mandatory requirement for a second appeal. The court further held that the applicant did not provide sufficient material to demonstrate that he lacked the means to pay for the preparation of the record of appeal, as lawful imprisonment alone does not establish impoverishment. Additionally, the notice of appeal was filed long after the statutory period had lapsed, and the delay was both inordinate and unexplained. Consequently, the court concluded that the application lacked merit and dismissed it in its entirety.
Court Disposition
application dismissed
Orders
- The application for extension of time and leave to appeal as a poor person is dismissed.
- Applicant to serve sentence imposed by the trial court and as upheld by this court on appeal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
MISC. CR. APPL. NO. 41 OF 2018
(CORAM: R. E. ABURILI - J.)
EMMANUEL OUMA OYOO.....................APPLICANT
VERSUS
REPUBLIC.................................................RESPONDENT
RULING ON APPLICATION
The Applicant/Convict herein Mr. Emmanuel Ouma Oyoo was convicted and sentenced by the PM’s Court Ukwala in Ukwala PM Cr. Case No. 45 of 2013 of the offence of incest contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006 and sentenced to life imprisonment.
Being dissatisfied with the said conviction and sentence, he appealed to the High Court at Siaya vide Siaya HCCRA 34 of 2015 and after hearing the appeal, Hon. Makau J dismissed the appeal, affirmed the conviction and upheld the sentence imposed on the applicant.
The applicant was dissatisfied with the decision of the High Court and filed Notice of Appeal on 3rd July 2013 challenging the judgment delivered on 28th September 2018 which Notice was filed way out of the statutory period. He now seeks leave of Court to extend the period which the Notice of Appeal should have been filed and for leave to file an appeal as a poor person.
Further, in his application dated 7th April 2018, he claims that he lacks money for preparation of the record of Appeal due to his incarceration. In addition, he claims that his constitutional rights will be deemed if his application is not granted and that the intended appeal has high chances of success.
The application is supported by the affidavit sworn on 3rd July 2018.
I have considered the application which seeks an opportunity to file a second appeal, as stipulated in Section 113 of the Court of Appeal Rules.
However, in my humble view, no single question of law has been identified proper for determination by the Court of Appeal as a second Appeal only lies on points or questions of law.
Further, being lawfully imprisoned does not impoverish one. There is no sufficient material demonstrating that the application is not possessed of sufficient means to pay for preparation of record of appeal. The Notice of Appeal was filed long after the statutory paid, which delay is inordinate and unexplained.
Accordingly, the application as filed lacks merit and the same is hereby dismissed.
Applicant to serve sentence imposed by the trial court and as upheld by this court on appeal.
Dated, Signed and Delivered at SIAYA this 31ST day of July 2018.
R.E. ABURILI
JUDGE