[2023] KEHC 26831 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay of eight years in seeking leave to appeal out of time. The judge noted that all prisons in Kenya have paralegal services, and even if there was some initial delay, the period in question was excessive. The court...
Source-derived case information.
- Citation
- [2023] KEHC 26831 (KLR)
- Parties
- Applicant: Leakey Otieno Mbago; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E072 of 2023
- 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, Conviction and Sentence, Sexual Offences Act, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leakey Otieno Mbago
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 explanation for the eight-year delay in seeking leave to appeal out of time.
- 2 Whether it is in the interest of justice to grant leave to appeal out of time after such a prolonged delay.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay of eight years in seeking leave to appeal out of time. The judge noted that all prisons in Kenya have paralegal services, and even if there was some initial delay, the period in question was excessive. The court held that granting leave after such a long period would not serve the interests of justice, particularly considering the position of the victim and the likelihood that the applicant may have already served his sentence. The application was deemed an afterthought and an abuse of the court process, leading to its dismissal.
Court Disposition
application dismissed
Orders
- The application dated 11th July 2023 and filed on 23rd November 2023 is dismissed.
- The file is closed.
Full Case Text
Judgment text and source record
24 paragraphs
Mbago v Republic (Miscellaneous Criminal Application E072 of 2023) [2023] KEHC 26831 (KLR) (18 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26831 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E072 of 2023
RE Aburili, J
December 18, 2023
Between
Leakey Otieno Mbago
Applicant
and
Republic
Respondent
(Arising from the original conviction and sentence in Senior Principal Magistrate Court Criminal Sexual Offences Case No 1099 of 2014 at Nyando)
Ruling
1. The Applicant Leakey Otieno Mbago was convicted vide Nyando SPM Sexual Offences Case No. 1099 of 2014 for the offence of Rape contrary to Section 3(1) of the Sexual Offences Act on 6th June 2015 and sentenced to undisclosed term.
2. He now seeks leave to appeal out of time claiming he never received proper guidance on what to do.
3. Regrettably, all prisons in Kenya have paralegal services and even if there was delay, eight (8) years is too long by which time he may have served his sentence if he was of good character and received remission.
4. The delay is not satisfactorily explained and is not in the interest of justice even for the victim of the offence. What justice will the convict be seeking eight years after being imprisoned?
5. I find the applicant is mischievous and the application as filed dated 11th July 2023 and only filed into court on 23rd November 2023 to be an afterthought and abuse of court process.
6. The application is dismissed.
7. The file is closed.
8. I so order
DATED, SIGNED AND DELIVERED AT KISUMU THIS 18TH DAY OF DECEMBER, 2023R. E. ABURILIJUDGE