[2022] KEHC 14207 (KLR)
The court found that although the delay in filing the Notice of Appeal was inordinate, the applicant had provided a reasonable explanation for the delay, namely, his transfer between prisons and the failure of prison authorities to forward his application. The State did not oppose the application. Exercising its...
Source-derived case information.
- Citation
- [2022] KEHC 14207 (KLR)
- Parties
- Applicant: Joseph Opiyo Marende; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E138 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Robbery With Violence, Conviction and Sentence, Prisoner Rights
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Opiyo Marende
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 a Notice of Appeal out of time against conviction and sentence.
- 2 Whether the delay in filing the Notice of Appeal was sufficiently explained.
Ratio Decidendi
The court found that although the delay in filing the Notice of Appeal was inordinate, the applicant had provided a reasonable explanation for the delay, namely, his transfer between prisons and the failure of prison authorities to forward his application. The State did not oppose the application. Exercising its discretion, the court granted the applicant leave to file the Notice of Appeal out of time, deeming the Notice of Appeal already filed as duly filed as of the date of the ruling. The applicant was reminded of his responsibility to prosecute the appeal, including applying for proceedings, judgment, and paying the necessary court fees.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file his Notice of Appeal out of time.
- The Notice of Appeal dated 11/9/2022 and filed on 17/10/2022 is deemed duly filed as at 24/10/2022.
Full Case Text
Judgment text and source record
25 paragraphs
Marende v Republic (Miscellaneous Criminal Application E138 of 2022) [2022] KEHC 14207 (KLR) (24 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14207 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E138 of 2022
RE Aburili, J
October 24, 2022
Between
Joseph Opiyo Marende
Applicant
and
Republic
Respondent
(Being an Application for leave of court to appeal against conviction and sentence in PM’s Bondo Criminal case No. 729 of 2016 delivered by Hon. J.P. Nandi, Principal Magistrate on 24/1/2018 AND in Siaya Criminal Appeal No. 9, 10, 11 & 12 [Consolidated] of 2018)
Ruling
1. The applicant Joseph Opiyo Marende seeks leave of court to file Notice of Appeal out of time.
2. Judgment was delivered on 30/11/2020 and communicated to him via signal on 4/12/2020 when he was at Kodiaga Maximum Prison. He was later transferred to Manyani Prison and is now at Naivasha Maximum Prison. He claims that he wrote to court but the prison authorities at Manyani did not send his application.
3. I have considered the application which is not opposed by the State.
4. The applicant is a convict of three counts of robbery with violence. Two of his victims succumbed. He was sentenced to serve fifty (50) years imprisonment on each count, sentences to run concurrently. On appeal, this court dismissed the appeal against conviction and sentence. He wishes to appeal to the Court of Appeal. The delay in filing Notice of Appeal is inordinate but it has been explained as being due to the movement from prison. to prison.
5. I exercise discretion and grant the applicant leave to file his Notice of Appeal to the High Court out of time. However, the applicant is responsible for the prosecution of his appeal. He should apply for proceedings and judgment and pay for the same together with court fees as shall be assessed by the court for the preparation and submission of the required copies of the record of Appeal to the Court of Appeal within the stipulated statutory period.
6. I hereby further order that the Notice of Appeal dated 11/9/2022 and filed in this court on 17/10/2022 shall be deemed to be duly filed as at today. The Deputy Registrar to serve a copy to the ODPP and to transmit a copy thereof duly certified to the Deputy Registrar Court of Appeal, Kisumu, accompanied by this Ruling forthwith.
7. Proceedings in the appeal file should be typed to completion.
8. I so order.
9. This File is closed.
DATED, SIGNED AND DELIVERED AT SIAYA, THIS 24THDAY OF OCTOBER 2022R.E. ABURILIJUDGE