[2023] KEHC 24408 (KLR)
The court found that the applicant failed to provide any credible or satisfactory explanation for the inordinate delay of over one year in seeking leave to appeal out of time. The court did not believe the applicant's claim that he had previously filed an application and received no response. The judge noted that...
Source-derived case information.
- Citation
- [2023] KEHC 24408 (KLR)
- Parties
- Applicant: Rolex Otieno Ogusi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E048 of 2023
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Conviction and Sentence, Inordinate Delay, Sexual Offences, Prisoners Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rolex Otieno Ogusi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the inordinate delay in filing an application for leave to appeal out of time.
- 2 Whether justice would be served by granting leave to appeal after a significant lapse of time since conviction.
Ratio Decidendi
The court found that the applicant failed to provide any credible or satisfactory explanation for the inordinate delay of over one year in seeking leave to appeal out of time. The court did not believe the applicant's claim that he had previously filed an application and received no response. The judge noted that prisoners are routinely assisted to file appeals promptly upon conviction, and the applicant's conduct suggested dishonesty. Given the unexplained and excessive delay, the court held that justice would not be served by granting leave to appeal, as it would prejudice the administration of justice and potentially result in retrials where case files may no longer be available. The...
Court Disposition
application dismissed
Orders
- The application dated 30th August 2023 is dismissed for inordinate delay without explanation.
- File closed.
Full Case Text
Judgment text and source record
25 paragraphs
Ogusi v Republic (Miscellaneous Criminal Application E048 of 2023) [2023] KEHC 24408 (KLR) (27 October 2023) (Ruling)
Neutral citation: [2023] KEHC 24408 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E048 of 2023
RE Aburili, J
October 27, 2023
Between
Rolex Otieno Ogusi
Applicant
and
Republic
Respondent
(Arising from the original conviction and sentence in Principal Magistrate’s Court Criminal Case No 52 of 2017 at Nyando)
Ruling
1. The Applicant is a convict vide Winam SPM Criminal Case No. 52 of 2017 vide Sexual Offences Case.
2. He was sentenced to serve twenty (20) years imprisonment on 13th October 2022. He claims that he filed an application for leave to appeal out of time but that he never received any response on the same.
3. It is now over one year since the applicant was convicted.
4. The delay in filing this application is inordinate and no explanation has been given for the delay. I find that justice will not be served if the convict is given the opportunity to file an appeal after such a long period of time when, in most cases case files are not even available and in the past, this court has had to order for retrials of convicted persons in vain.
5. This court does not believe that the applicant filed an application to appeal out of time and that he never received any response.
6. Furthermore, there is no reason why the applicant did not file an appeal after his conviction yet he is serving prison term in a very active prison where convicts are assisted to file documents in court the moment they reach prison.
7. I find the applicant to be lying to this court and the delay which is unexplained is too inordinate.
8. I reject the application dated 30th August 2023 and dismiss it for having been filed with inordinate delay without any explanation why the appeal was not filed within 14 days of the date of conviction and sentence, in the first instance.
9. File closed. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 27TH DAY OF OCTOBER, 2023R. E. ABURILIJUDGE