[2023] KEHC 3083 (KLR)
The court found that the applicant's delay in filing the appeal was not inordinate and was explained by his lack of funds. The prosecution would not be prejudiced by the grant of leave. Accordingly, the court exercised its discretion to allow the application and granted the applicant leave to file an appeal out of...
Source-derived case information.
- Citation
- [2023] KEHC 3083 (KLR)
- Parties
- Applicant: Brian Kibet Kimutai alias Cosmas Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E127 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to appeal out of time granted.
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Conviction Appeal, Imprisonment Sentence, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Kibet Kimutai alias Cosmas Ochieng
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 inordinate or justified.
Ratio Decidendi
The court found that the applicant's delay in filing the appeal was not inordinate and was explained by his lack of funds. The prosecution would not be prejudiced by the grant of leave. Accordingly, the court exercised its discretion to allow the application and granted the applicant leave to file an appeal out of time against his conviction and sentence in Maseno Senior Principal Magistrate’s Court Criminal Case No E352 of 2022.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- The applicant is granted leave to file an appeal out of time from conviction in Maseno Senior Principal Magistrate’s Court Criminal Case No E352 of 2022.
- The petition of appeal to be filed and served within fourteen (14) days of the ruling date.
Full Case Text
Judgment text and source record
22 paragraphs
Kimutai v Republic (Miscellaneous Criminal Application E127 of 2022) [2023] KEHC 3083 (KLR) (28 March 2023) (Ruling)
Neutral citation: [2023] KEHC 3083 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E127 of 2022
RE Aburili, J
March 28, 2023
Between
Brian Kibet Kimutai alias Cosmas Ochieng
Applicant
and
Republic
Respondent
Ruling
1. The Applicant Brian Kibet Kimutai alias Cosmas Ochieng is a convict in Maseno Senior Principal Magistrate’s Court Criminal Case No E352 of 2022. He claims that he was convicted on October 5, 2022 but that he was unable to file an appeal in time because he had no money and seeks leave of this court to file an appeal out of time yet he was sentenced to serve nine (9) years imprisonment for impersonation.
2. I have considered the application dated December 13, 2022. The prosecution will in no way be prejudiced if leave to appeal out of time is granted as the delay is not inordinate.
3. I allow the application dated November 8, 2022 and filed in court on December 13, 2022.
4. I grant the Applicant herein Brian Kibet Kimutai alias Cosmas Ochieng leave to file an appeal out of time from conviction in Maseno Senior Principal Magistrate’s court Criminal Case No E352 of 2022.
5. The Petition of appeal to be filed and served within fourteen (14) days of today.
6. Applicant to be notified of this order.
7. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 28THDAY OF MARCH, 2023R. E. ABURILIJUDGE