[2018] KEHC 4694 (KLR)
The court found that the applicants' delay in filing the notice of appeal was not inordinate, as the application was made shortly after the judgment. The applicants were entitled to an opportunity to challenge their conviction and sentence on appeal. However, the court was not satisfied that the applicants were...
Source-derived case information.
- Citation
- [2018] KEHC 4694 (KLR)
- Parties
- Applicant: Milton Obote Ogaya Alias Adem; Applicant: Daniel Owino Omondi Alias Israel; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 55 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Waiver of Court Fees
- Outcome
- Application for leave to appeal out of time granted; application for waiver of court fees declined.
- Judges
- RE Aburili
- Legal Topics
- Manslaughter Conviction, Leave to Appeal Out of Time, Court Fees Waiver, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Milton Obote Ogaya Alias Adem
Applicant
Daniel Owino Omondi Alias Israel
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time and Waiver of Court Fees
Legal Issues
- 1 Whether the applicants should be granted leave to file a notice of appeal out of time against their conviction and sentence for manslaughter.
- 2 Whether the applicants have demonstrated sufficient grounds for waiver of court fees for preparation of the record of appeal.
Ratio Decidendi
The court found that the applicants' delay in filing the notice of appeal was not inordinate, as the application was made shortly after the judgment. The applicants were entitled to an opportunity to challenge their conviction and sentence on appeal. However, the court was not satisfied that the applicants were total paupers incapable of paying court fees, as no sufficient evidence was provided to that effect. Consequently, the court granted leave to appeal out of time but required each applicant to pay Kshs. 10,000 for preparation of the record of appeal, declining the request for a full waiver of court fees.
Court Disposition
Application for leave to appeal out of time granted; application for waiver of court fees declined.
Orders
- Leave to appeal out of time is granted.
- The Notice of Appeal dated 30/1/2018 is deemed duly filed and served.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CR. APPL. NO. 55 OF 2018
(MANSLAUGHTER)
(CORAM: R. E. ABURILI - J.)
MILTON OBOTE OGAYA Alias ADEM.............1ST APPLICANT
DANIEL OWINO OMONDI Alias ISRAEL.......2ND APPLICANT
VERSUS
REPUBLIC................................................................RESPONDENT
RULING
The Applicants; Milton Obote Ogaya and Daniel Owino Omondi were convicted of the offence of manslaughter contrary to Section 202 as read with Section 205 of the Penal Code by Hon. Justice J.A. Makau on 8th December 2017 and sentenced to serve 11 years imprisonment.
The Applicants were ably represented by an advocate, Mr. Okello. No application for proceedings and judgment was ever made to signify the Applicants’ intention to appeal to the Court of Appeal.
However, on 30/1/2018, they filed a joint motion under Rule 113 of the Court of Appeal Rules seeking leave of waiver of Court fees and extension of the time for filing Notice of Appeal out of time.
In their joint affidavit, the applicants claim that they cannot raise court fees required for preparation of their record of appeal due to their incarceration in prison and that their constitutional rights will be violated if the application is not granted. Further, that their appeal has high chances of success.
I note that the applicant’s intended appeal is a first appeal from the judgment of this court. At the trial for murder, they were represented by an advocate at the State’s expense. They were acquitted of the offence of murder for want of malice aforethought and convicted of the offence of manslaughter which is a lesser charge. Their appeal is therefore on points of law as well as facts. In my view, the applicants should be given an opportunity to challenge the decision of this court. Their application was filed on 30/1/2018 which was not too long after the judgment of Hon. Makau J. The delay is therefore not inordinate. However, there is no sufficient ground advanced to show that the Applicants are total paupers and that therefore they cannot afford to raise court fees or any part thereof for preparation of their appeal to the Court of Appeal.
Accordingly, I grant the applicants’ leave to appeal out of time. The Notice of Appeal dated 30/1/2018 is hereby deemed to be duly filed and served upon the Prosecution Counsel, Siaya.
The applicants shall be responsible for the preparation of their record of appeals. They shall be required to pay into court a sum of Kshs. 10,000/= each for the preparation of the record of Appeal.
Dated, Signed and Delivered at SIAYA this 31ST DAY OF JULY 2018.
R.E. ABURILI
JUDGE