[2024] KEHC 7290 (KLR)
The court found that despite the delay in filing the appeal, justice would be served by granting the applicant an opportunity to be heard on appeal. The applicant's reasons for delay—lack of funds, inability to obtain legal representation, and not receiving court proceedings—were considered sufficient to warrant the...
Source-derived case information.
- Citation
- [2024] KEHC 7290 (KLR)
- Parties
- Applicant: Maxwel Ogam Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E089 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Defilement Offence, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maxwel Ogam Ochieng
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 appeal out of time against conviction and sentence for defilement.
- 2 Whether the applicant's right to appeal would be violated if leave is not granted.
Ratio Decidendi
The court found that despite the delay in filing the appeal, justice would be served by granting the applicant an opportunity to be heard on appeal. The applicant's reasons for delay—lack of funds, inability to obtain legal representation, and not receiving court proceedings—were considered sufficient to warrant the exercise of judicial discretion in his favour. The court emphasized the importance of the right to appeal and the need to ensure that a convict is not denied the opportunity to challenge a conviction and sentence due to circumstances beyond his control.
Court Disposition
leave to appeal out of time granted
Orders
- Leave is granted to the applicant to appeal out of time.
- The intended appeal shall be filed within 14 days of service of this order upon the applicant through Prisons Authorities.
Full Case Text
Judgment text and source record
22 paragraphs
Ochieng v Republic (Miscellaneous Criminal Application E089 of 2024) [2024] KEHC 7290 (KLR) (13 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7290 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E089 of 2024
RE Aburili, J
June 13, 2024
Between
Maxwel Ogam Ochieng
Applicant
and
Republic
Respondent
(From the original conviction and sentence in the Senior Principal Magistrate’s Court Criminal Sexual Offences Case No. E078 of 2021 at Winam)
Ruling
1. The Applicant is Maxwel Ogam Ochieng. He was convicted and sentenced to serve ten (10) years imprisonment on 8th August 2023 for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act vide Winam SPM Sexual Offences Case No. E078 of 2021.
2. He now applies by his Notice of Motion dated 27th May 2024 for leave to appeal out of time on the ground that he did not have any money to appeal and his cousin who promised to help him engage an advocate failed to do so due to poverty. Further that he did not get copy of court proceedings hence, unless leave is granted, his right to appeal will be violated.
3. I have considered the application. Despite the delay, justice can still be served for the convict who deserves to be accorded an opportunity to be heard on appeal to challenge the conviction and sentence imposed on him.
4. I grant leave to the Applicant to appeal out of time. The intended appeal shall be filed within 14 days of the date of service of this order upon the applicant/convict through Prisons Authorities.
5. The Ruling to be typed and served upon the applicant in prison.
6. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 13TH DAY OF JUNE, 2024R. E. ABURILIJUDGE