[2020] KEHC 7940 (KLR)
The High Court determined that the appellant filed the appeal against sentence approximately three months after the sentence was delivered, without seeking or obtaining leave to file the appeal out of time. As a result, the court's appellate jurisdiction was not properly invoked. The absence of leave rendered the...
Source-derived case information.
- Citation
- [2020] KEHC 7940 (KLR)
- Parties
- Appellant: Esborne Omondi Otieno alias Kadwalo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 19 of 2019
- Procedural Posture
- Criminal Appeal / Appeal Against Sentence
- Outcome
- Appeal struck out as incompetent for want of jurisdiction.
- Judges
- AC Mrima
- Legal Topics
- Appeal Out of Time, Jurisdiction of High Court, Sentence Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esborne Omondi Otieno alias Kadwalo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Appeal Against Sentence
Legal Issues
- 1 Whether the High Court's jurisdiction was properly invoked in the absence of leave to file the appeal out of time.
- 2 Whether the appeal against sentence was competent before the court.
Ratio Decidendi
The High Court determined that the appellant filed the appeal against sentence approximately three months after the sentence was delivered, without seeking or obtaining leave to file the appeal out of time. As a result, the court's appellate jurisdiction was not properly invoked. The absence of leave rendered the appeal incompetent, and therefore, the court could not consider the merits of the appeal. The appeal was accordingly struck out for want of jurisdiction.
Court Disposition
Appeal struck out as incompetent for want of jurisdiction.
Orders
- The appeal is hereby struck out.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MIGORI
[Coram: A. C. Mrima, J.]
CRIMINAL APPEAL NO. 19 OF 2019
ESBORNE OMONDI OTIENOaliasKADWALO............................APPELLANT
-versus-
REPUBLIC.........................................................................................RESPONDENT
(Being an appeal arising from the sentence by Hon. R. K. Langat Senior Resident Magistrate
in Rongo SeniorResident Magistrate’s Court Criminal Case No. 420 of 2018
delivered on 28/12/2018)
JUDGMENT
1. This is an appeal against sentence.
2. Esborne Omondi OtienoaliasKadwalo,the Appellant herein, was charged with the offence of grevious harm contrary to Section 234of the Penal Code.
He denied the offence.
3. The Appellant was subsequently tried, found guilty and convicted as charged. He was accordingly sentenced to 12 years’ imprisonment.
4. Being dissatisfied with the sentence, the Appellant preferred an appeal through Messrs. Odondi Awino and Company Advocates who filed a Petition of Appeal on 21/03/2019. The Petition of Appeal was filed about 3 months from the date of the sentence. From the record the Appellant did not seek any leave to file the appeal out of time.
5. From the foregone, the jurisdiction of this Court has not been properly invoked. There is no competent appeal before Court for consideration. The incompetent appeal is hereby struck out.
It is so ordered.
DELIVERED, DATED AND SIGNED AT MIGORI THIS 10TH DAY OF FEBRUARY 2020
A. C. MRIMA
JUDGE
Judgment delivered in open Court and in the presence of:
Mr. Awino Odondi,Counsel for the Appellant.
Mr. Kimanthi, Senior Principal Prosecution Counsel instructed by the Office of the Director of Public Prosecutions for the State.
Evelyne Nyauke – Court Assistant