[2021] KEHC 895 (KLR)
The court held that the applicant's motion was not based on the Muruatetu decision, as it did not concern a mandatory sentence for murder but rather sought leave to appeal out of time for a minor offence (cheating). The court found that the delay in having the affidavit commissioned and the subsequent failure to...
Source-derived case information.
- Citation
- [2021] KEHC 895 (KLR)
- Parties
- Applicant: Nicodemus Oniango Bilasio; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 4 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Directions on Hearing of Motion for Leave to Appeal Out of Time
- Outcome
- Directions issued for expeditious hearing of the motion for leave to appeal out of time.
- Judges
- DN Musyoka
- Legal Topics
- Leave to Appeal Out of Time, Mandatory Sentences, Commissioning of Affidavits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicodemus Oniango Bilasio
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Directions on Hearing of Motion for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant's motion for leave to file an appeal out of time should be heard despite procedural delays.
- 2 Whether the supporting affidavit, initially uncommissioned, affects the progression of the application.
- 3 Whether the Supreme Court decision in Muruatetu applies to the applicant's case.
Ratio Decidendi
The court held that the applicant's motion was not based on the Muruatetu decision, as it did not concern a mandatory sentence for murder but rather sought leave to appeal out of time for a minor offence (cheating). The court found that the delay in having the affidavit commissioned and the subsequent failure to place the file before a judge for hearing constituted an injustice to the applicant. The Deputy Registrar was directed to ensure the matter is set down for hearing promptly, with notice to both the applicant and the Director of Public Prosecutions.
Court Disposition
Directions issued for expeditious hearing of the motion for leave to appeal out of time.
Orders
- Deputy Registrar to avail copies of the ruling to the applicant and the Director of Public Prosecutions, Kakamega.
- Deputy Registrar to fix a date for hearing of the motion dated 13th January 2020 forthwith.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION NO. 4 OF 2020
NICODEMUS ONIANGO BILASIO.............................................................APPLICANT
VERSUS
REPUBLIC.....................................................................................................RESPONDENT
RULING
1. This matter was placed before me for the purpose of giving directions, in view of the recent decision by the Supreme Court in Francis Karioko Muruatetu & another vs. Republic; Katiba Institute & 5 others(Amicus Curiae[2021] (Koome CJ&P, Mwilu DCJ&VP, Ibrahim, Wanjala, Ndung’u & Lenaola SSJJ), with respect to mandatory sentences, where it was clarified that the decision, in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), had arisen from proceedings relating to murder, under section 204 of the Penal Code, Cap 63, Laws of Kenya, and the position stated in the said decision was intended to apply only to mandatory sentences with respect to murder cases.
2. The Motion herein, dated 13th January 2020, filed herein on an unknown date, is not founded on the decision, in Francis Karioko Muruatetu & another vs. Republic[2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki and Lenaola SCJJ), for the petitioner does not seek review of sentence, but seeks leave to file appeal out of time.
3. The file was placed before me in chambers on 14th May 2020, and I noted that the affidavit in support of the Motion was not commissioned, and I directed that it be commissioned first before directions could be taken. I note that since then the affidavit was commissioned, on some unknown date, but the file was never placed before a Judge for orders. This is clear injustice to the applicant, for the offence that led to his incarceration was a minor one, cheating, and this matter should have been handled bearing in mind that time was ticking. The Deputy Registrar should have had the file placed before a Judge for hearing of that Motion, with notice to the applicant and the Director of Public Prosecutions, as soon as the affidavit was commissioned.
4. The Deputy Registrar shall cause copies of this ruling to be availed to the applicant and the office of Director of Public Prosecutions, Kakamega, and shall fix a date for the hearing of the Motion dated 13th January 2020 forthwith.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 20th DAY OF December 2021
W MUSYOKA
JUDGE