[2023] KEHC 19007 (KLR)
The court found that although the applicant was granted leave to appeal out of time, there was no evidence that he actually filed an appeal. The court directed the registry to confirm whether any such appeal exists. If an appeal was filed, the lower court file should be placed with the appeal file for hearing. If no...
Source-derived case information.
- Citation
- [2023] KEHC 19007 (KLR)
- Parties
- Applicant: Omollo Hillary Kiprotich; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E050 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Post Conviction; Application for Leave to Appeal Out of Time
- Outcome
- Miscellaneous application file closed; directions issued regarding status of appeal and handling of lower court file.
- Judges
- RE Aburili
- Legal Topics
- Defilement Offence, Sexual Offences Act, Leave to Appeal Out of Time, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omollo Hillary Kiprotich
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Post Conviction; Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant filed an appeal pursuant to the leave granted to appeal out of time.
- 2 Whether the lower court file should remain with the High Court or be returned to the Tamu Law Courts.
Ratio Decidendi
The court found that although the applicant was granted leave to appeal out of time, there was no evidence that he actually filed an appeal. The court directed the registry to confirm whether any such appeal exists. If an appeal was filed, the lower court file should be placed with the appeal file for hearing. If no appeal was filed, the lower court file should be returned to the Tamu Law Courts, as the time for filing the appeal had lapsed and there was no further purpose for retaining the file. The miscellaneous application file was accordingly closed, having served its purpose upon the grant of leave to appeal.
Court Disposition
Miscellaneous application file closed; directions issued regarding status of appeal and handling of lower court file.
Orders
- Registry to establish whether Omollo Hillary Kiprotich filed any appeal pursuant to the order of November 3, 2022.
- If such appeal exists, Tamu PM Sexual Offences Case No E030 of 2021 to be placed in that file and brought before the court for admission of the appeal to hearing.
Full Case Text
Judgment text and source record
21 paragraphs
Kiprotich v Republic (Miscellaneous Criminal Application E050 of 2022) [2023] KEHC 19007 (KLR) (19 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19007 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E050 of 2022
RE Aburili, J
June 19, 2023
Between
Omollo Hillary Kiprotich
Applicant
and
Republic
Respondent
Ruling
1. The Applicant/Convict is Omollo Hillary Kiprotich. He was convicted and sentenced on March 2, 2022 vide Tamu PM Sexual Offences Case No E030 of 2021 for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006.
2. He was sentenced to serve fifteen (15) years imprisonment. Later on April 26, 2022, he filed an application in this file for leave to appeal out of time. The court did grant him that leave on November 3, 2022.
3. Regrettably, I cannot find that order extracted and send to the convict in prison as it ought to be. The file was filed away and even the original case file from Tamu Law Courts was availed to this court in this file on March 8, 2023 yet there is nothing for consideration.
4. For the above reasons, I make the following orders:a.That the Registry establishes whether the Convict Omollo Hillary Kiprotich filed any appeal pursuant to the order of November 3, 2022. b.That if such appeal does exist in this court, then Tamu PM Sexual Offences Case No E030 of 2021 which is housed herein be placed in that file and brought before this court for admission of the appeal to hearing.c.That if no appeal was filed, as the order was issued on November 3, 2022 in the presence of the Convict/Applicant, then the time lapsed and there was no need of the lower court file being submitted to this court hence, the lower court file Tamu PM Sexual Offences Case No. E030 of 2021 shall be returned to Tamu Law Courts forthwith.
5. That this file already served its purpose for which it was opened following the grant of leave to appeal on November 3, 2022 hence this file is hereby closed.
6. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 19TH DAY OF JUNE, 2023R E ABURILIJUDGE