[2022] KEHC 14584 (KLR)
The court found that although the delay in filing the appeal was inordinate, the applicant provided an explanation that he lacked legal representation and his family was poor. Exercising judicial discretion, the court granted leave to appeal out of time, emphasizing that the right of appeal should not be unduly...
Source-derived case information.
- Citation
- [2022] KEHC 14584 (KLR)
- Parties
- Applicant: Samuel Mudavadi Lumumba; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E012 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal, Out of Time Appeal, Defilement Offence, Sentencing, Sexual Offences Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Mudavadi Lumumba
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 against sentence out of time.
- 2 Whether the delay in filing the appeal was excusable.
Ratio Decidendi
The court found that although the delay in filing the appeal was inordinate, the applicant provided an explanation that he lacked legal representation and his family was poor. Exercising judicial discretion, the court granted leave to appeal out of time, emphasizing that the right of appeal should not be unduly hindered by procedural technicalities, especially where the applicant is a convict serving a lengthy sentence for a serious offence. The leave was conditional upon filing the appeal within 14 days, failing which the leave would lapse.
Court Disposition
leave to appeal out of time granted
Orders
- The applicant is granted leave to file an appeal out of time within 14 days from the date of this ruling, failing which the leave shall lapse.
- The file is hereby closed.
Full Case Text
Judgment text and source record
21 paragraphs
Lumumba v Republic (Miscellaneous Criminal Application E012 of 2022) [2022] KEHC 14584 (KLR) (27 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14584 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E012 of 2022
RE Aburili, J
October 27, 2022
Between
Samuel Mudavadi Lumumba
Applicant
and
Republic
Respondent
((Application for leave of court to appeal against sentence in Kisumu CM Sexual Offence case No. 1 of 2019))
Ruling
1. The applicant is Samuel Mudavadi Lumumba. He is a convict in Kisumu CM Sexual OfFence case No 1/2019 for the offence of defilement contrary to section 8 (1) as read with section 8(3) of the Sexual Offences Act.
2. He was sentenced to serve 20 years imprisonment on 25/6/2019. On 25/1/2022 he filed this application seeking for leave to appeal out of time saying he delayed to file an appeal because he had no advocate and his family is poor.
3. The delay in filing the appeal is inordinate. However, I exercise discretion and grant the applicant leave to file an appeal out of time, if no such appeal was filed, within 14 days of today in default, this leave granted shall lapse.
4. I so order.
5. This file is hereby closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 27THDAY OF OCTOBER, 2022. R.E. ABURILIJUDGE