[2023] KEHC 25635 (KLR)
The court found that although the application was not supported by a sworn affidavit and the applicant was unrepresented, the delay between conviction and the application for leave to appeal was not inordinate. The application was dated 21st August 2023, shortly after conviction on 7th August 2023, and the delay in...
Source-derived case information.
- Citation
- [2023] KEHC 25635 (KLR)
- Parties
- Applicant: Kevin Ouma Ngesa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E071 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application for leave to appeal out of time allowed.
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Sexual Offences, Conviction Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kevin Ouma Ngesa
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 conviction and sentence for an indecent act.
- 2 Whether the delay in filing the appeal was inordinate or justified.
Ratio Decidendi
The court found that although the application was not supported by a sworn affidavit and the applicant was unrepresented, the delay between conviction and the application for leave to appeal was not inordinate. The application was dated 21st August 2023, shortly after conviction on 7th August 2023, and the delay in filing was attributed to the prison authorities, not the applicant. The court exercised its discretion to allow the application for leave to appeal out of time, recognizing the applicant's lack of legal representation and the absence of evidence of deliberate delay or abuse of process.
Court Disposition
Application for leave to appeal out of time allowed.
Orders
- The applicant is granted leave to file an appeal out of time.
- The applicant shall file his appeal within fourteen (14) days of the date of this ruling.
Full Case Text
Judgment text and source record
22 paragraphs
Ngesa v Republic (Miscellaneous Criminal Application E071 of 2023) [2023] KEHC 25635 (KLR) (17 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25635 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E071 of 2023
RE Aburili, J
November 17, 2023
Between
Kevin Ouma Ngesa
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Senior Principal Magistrate’s Court Criminal Sexual Offences Case No. 76 of 2018 at Maseno)
Ruling
1. The Applicant Kevin Ouma Ngesa by his application which was dated 21st August 2023 but only filed in court on 17th November 2023 seeks orders for leave to file an appeal out of time from Maseno SPM Sexual Offences Case No. 76 of 2018.
2. He claims that he was convicted on 7th August 2023 of the offence of indecent act contrary to Section 20(1) of the Sexual Offences Act and that he waited for his family to file for him an appeal through an advocate in vain and that the sentence is ambiguous. Further that he did not get court proceedings hence the delay.
3. I have considered the application though not supported by a sworn affidavit, the applicant is in person and the delay is not inordinate as the application is dated 21st August 2023 and it is not clear why the prisons authorities only lodged it in court on 17th November 2023.
4. In the premises, I allow the application for leave to appeal out of time and order that the applicant files his appeal within fourteen (14) days of today.
5. This file is closed.
6. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF NOVEMBER, 2023R. E. ABURILIJUDGE