[2018] KEHC 4671 (KLR)
The court found that although imprisonment is not in itself a sufficient reason to establish poverty, the seriousness of the sentence (death penalty) and the fact that this is a first appeal, which allows for both factual and legal grounds, justify the exercise of judicial discretion to grant leave. The court...
Source-derived case information.
- Citation
- [2018] KEHC 4671 (KLR)
- Parties
- Applicant: Meshack Oduol Alara; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 53 of 2018
- Procedural Posture
- Miscellaneous 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, Murder Conviction, Death Sentence, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Meshack Oduol Alara
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous 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 a conviction and sentence of death.
- 2 Whether imprisonment and poverty constitute sufficient grounds for extension of time to appeal.
Ratio Decidendi
The court found that although imprisonment is not in itself a sufficient reason to establish poverty, the seriousness of the sentence (death penalty) and the fact that this is a first appeal, which allows for both factual and legal grounds, justify the exercise of judicial discretion to grant leave. The court determined that the applicant should be given an opportunity to challenge the conviction and sentence, and thus allowed the application for extension of time to appeal, subject to payment of Kshs. 15,000 for preparation of the record of appeal.
Court Disposition
application allowed
Orders
- The application for leave to file an appeal out of time is allowed.
- The Notice of Appeal is deemed duly filed and served in time.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CR. APPL. NO. 53 OF 2018
(CORAM: R. E. ABURILI - J.)
MESHACK ODUOL ALARA.................APPLICANT
VERSUS
REPUBLIC............................................RESPONDENT
RULING ON APPLICATION
The Applicant, Meshack Oduol Alarafaced the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code in that on 28th day of August 2016 at Nguge Sub-location, Gem Sub-County within Siaya County, murdered Meshack Opicha Wagunda.
He pleaded not guilty to the charge and was tried before Hon. Makau J and found guilty of the charge of murder and sentenced to death on 2nd February 2018.
On 3rd July 2018, he lodged a Notice of Appeal 5 months after the conviction and sentence. He now seeks by his application and affidavit sworn on 16th March 2018 leave to file an appeal out of time as a poor person under Rule 113(2) (5) of the Court of Appeal Rules,claiming he is poor by virtue of his imprisonment among other grounds.
This court observes that the intended appeal is a first appeal which accommodates grounds on both questions of law and fact.
Albeit I do not find imprisonment not being a reason why one would be poor, I find that this is a suitable case where the court can exercise its discretion to accord the convict an opportunity to challenge death sentence meted out on him as it is not a mandatory sentence.
Accordingly, I allow the application and direct that the Notice of Appeal be deemed to be duly filed and served in time. However, the Applicant/ Appellant shall pay into Court Kshs. 15,000/= for preparation of record of Appeal.
Dated, Signed and Delivered at SIAYA this 31ST day of July 2018.
R.E. ABURILI
JUDGE