[2022] KEHC 13534 (KLR)
The court found that the applicant had previously sought leave to appeal as a pauper, which was dismissed, and that no new or sufficient grounds had been advanced to justify granting leave to appeal out of time. The court held that the application was an abuse of the court process and devoid of merit, especially...
Source-derived case information.
- Citation
- [2022] KEHC 13534 (KLR)
- Parties
- Applicant: Erastus Omwonya Madowo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E107 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, Sexual Offences, Resentencing, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus Omwonya Madowo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient grounds to warrant leave to appeal out of time.
- 2 Whether the application constitutes an abuse of the court process.
Ratio Decidendi
The court found that the applicant had previously sought leave to appeal as a pauper, which was dismissed, and that no new or sufficient grounds had been advanced to justify granting leave to appeal out of time. The court held that the application was an abuse of the court process and devoid of merit, especially considering the lapse of almost three years since resentencing and the absence of any compelling justification for the delay.
Court Disposition
application dismissed
Orders
- The application for leave to appeal out of time is dismissed.
- A copy of this ruling to be filed in the Criminal Appeal file.
Full Case Text
Judgment text and source record
23 paragraphs
Madowo v Republic (Miscellaneous Criminal Application E107 of 2022) [2022] KEHC 13534 (KLR) (5 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13534 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E107 of 2022
RE Aburili, J
October 5, 2022
Between
Erastus Omwonya Madowo
Applicant
and
Republic
Respondent
(Being an Application to file an appeal out of time in Judgment, conviction and sentence in the Principal Magistrate’s Court at Siaya in Sexual Offence Case No.991/2016 by Hon. T.M. Olando, Senior Resident Magistrate on 5/9/2017 and in Siaya HCRA No. 85 of 2017)
Ruling
1. I have considered the convict/applicant’s application for leave to appeal out of time filed on 31/8/2022, from the judgment in HCRA 85/2017 at Siaya.
2. The judgment sought to be challenged was rendered on 9/10/2019 dismissing his appeal, upon which the court called for a Victim Impact statement before resentencing the convict herein who had been sentenced to serve life imprisonment in Siaya PMS SO No. 991/2016. The victim of the defilement charge was aged six and a half years.
3. Later vide HCR Miscellaneous Application No. E007/2021, the applicant sought for leave to appeal as a pauper under Rule 113 of the Court of Appeal Rules. That application was dismissed on 27/1/2022.
4. It is worth noting that this court resentenced the convict in the Appeal on 11/4/2019 considering the age of the minor, the circumstances under which the offence was committed to a neighbor’s child and the period that the convict had spent in custody.
5. It is almost three years since he was resentenced. He is back into court seeking leave to appeal out of time. I find the application to be an abuse of court process and devoid of any merit. It is hereby dismissed.
6. A copy of this ruling to be filed in the Criminal Appeal file.
7. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 5TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE