[2023] KEHC 19009 (KLR)
Despite the applicant's unexplained delay of one year in seeking to file an appeal against the sentence of death for robbery with violence, the court exercised its discretion to grant leave. The court considered that the applicant is self-represented and that the interests of justice would be served by allowing him...
Source-derived case information.
- Citation
- [2023] KEHC 19009 (KLR)
- Parties
- Applicant: Erick Omondi Mboya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E032 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave granted to file appeal out of time.
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Robbery With Violence, Sentencing, Death Penalty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Omondi Mboya
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 an appeal out of time against the sentence of death imposed for robbery with violence.
Ratio Decidendi
Despite the applicant's unexplained delay of one year in seeking to file an appeal against the sentence of death for robbery with violence, the court exercised its discretion to grant leave. The court considered that the applicant is self-represented and that the interests of justice would be served by allowing him to challenge the sentence. The absence of an explanation for the delay did not bar the exercise of discretion in the applicant's favour, particularly given the gravity of the sentence imposed. The court therefore granted the applicant leave to file an appeal against the sentence within fourteen days.
Court Disposition
Application allowed. Leave granted to file appeal out of time.
Orders
- The applicant is granted leave to file an appeal from the sentence imposed in Kisumu CMCR Case No 525 of 2018.
- The appeal shall be filed within fourteen (14) days of the ruling date.
Full Case Text
Judgment text and source record
23 paragraphs
Mboya v Republic (Miscellaneous Criminal Application E032 of 2023) [2023] KEHC 19009 (KLR) (19 June 2023) (Ruling)
Neutral citation: [2023] KEHC 19009 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E032 of 2023
RE Aburili, J
June 19, 2023
Between
Erick Omondi Mboya
Applicant
and
Republic
Respondent
Ruling
1. The Applicant is Erick Omondi Mboya. He filed this application on June 8, 2023 seeking leave of court to file an appeal out of time from the sentence passed in Kisumu CM Criminal Case No 525 of 2018.
2. He claims that he was convicted on November 5, 2021. No copy of proceedings are annexed. The offence with which he was convicted and sentenced to death is Robbery with violence contrary to Section 296(2) of thePenal Code.
3. He has annexed copy of warrant of commitment to prison dated December 1, 2021 by Hon SN Telewa, SRM, Kisumu. He does not explain the reasons for the delay. He states that he only wants to appeal against sentence of death imposed on him.
4. I observe that vide HC Misc Criminal Application E128 of 2022 filed on December 15, 2022 one year after sentence, the same convict/applicant herein attempted to file an application which was entered in the CTS but no documents were received. That file is pending and is before me for directions.
5. Albeit there was unexplained delay of one year to file the intended appeal, I exercise discretion and grant the convict Erick Omondi Mboya a self-represented convict leave to file an appeal from sentence imposed in Kisumu CMCR Case No 525 of 2018.
6. The appeal shall be filed within fourteen (14) days of today.
7. This file is hereby closed.
8. I so order.
Dated, Signed and Delivered at Kisumu this 19th Day of June, 2023R. E. ABURILIJUDGE