[2022] KEHC 13899 (KLR)
The court found that the applicant had already exercised his right of appeal by filing HCRA E008/2022, which was dismissed for non-compliance with court directions. No application to set aside the dismissal order was made. The present application for leave to appeal out of time was therefore considered misguided and...
Source-derived case information.
- Citation
- [2022] KEHC 13899 (KLR)
- Parties
- Applicant: Muslim Odemba Hamsa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E086 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Defilement Offence, Sexual Offences Act, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muslim Odemba Hamsa
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 appeal out of time from the judgment, conviction and sentence of the trial court.
- 2 Whether the application is properly before the court given the prior dismissal of the appeal for non-compliance with court directions.
Ratio Decidendi
The court found that the applicant had already exercised his right of appeal by filing HCRA E008/2022, which was dismissed for non-compliance with court directions. No application to set aside the dismissal order was made. The present application for leave to appeal out of time was therefore considered misguided and mischievous, as the applicant had already been afforded an opportunity to appeal and failed to comply with the court's directions. The court dismissed the application and closed the file.
Court Disposition
application dismissed
Orders
- The application for leave to appeal out of time is dismissed.
- File closed.
Full Case Text
Judgment text and source record
22 paragraphs
Hamsa v Republic (Miscellaneous Criminal Application E086 of 2022) [2022] KEHC 13899 (KLR) (11 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13899 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E086 of 2022
RE Aburili, J
October 11, 2022
Between
Muslim Odemba Hamsa
Applicant
and
Republic
Respondent
(Being an Application for leave to file appeal out of time from Judgment, conviction and sentence in the Principal Magistrate’s court at Bondo in Sexual offence Case No. 41/2020 by Hon. S.W. Mathenge Resident Magistrate on 21. 2.2022 AND in Siaya HCRA No. E008 of 2022 on 9. 3.2022)
Ruling
1. The applicant is Muslim Odemba Hamsa. He applies for leave to appeal out of time from the judgment, conviction and sentence passed in Bondo PM Sexual Offence Case No. 41/2020, where he was sentenced on 28/2/2022 to serve life imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offence Act.
2. He appealed to this court vide HCRA E008/2022 on 9/3/2022 and this court immediately called for the lower court record and on 27/5/2022 the appeal was admitted to hearing and the appellant was directed to file and serve a complete record of appeal upon the Respondent. He was ably represented by an advocate.
3. The matter was slated for mention for directions on 27/6/2022 by which time, the orders of 27/6/2022 made one month earlier had not been complied with hence this court dismissed the appeal for non-compliance with court directions and closed the file. No application to set aside those orders has been received and or considered by this court.
4. The applicant now wants leave to appeal out of time from the decision of the trial court.
5. I find this application misguided and mischievous. It is hereby dismissed.
6. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 11TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE