[2022] KEHC 10353 (KLR)
The court held that the applicant had not demonstrated pauperism by evidence, as required for waiver of court fees, and that the court had already ruled on this issue in a previous application, making it functus officio. However, the court exercised its discretion to grant leave to file a notice of appeal out of...
Source-derived case information.
- Citation
- [2022] KEHC 10353 (KLR)
- Parties
- Applicant: Jacob Okech Omollo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E063 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time and Waiver of Court Fees
- Outcome
- Application partially allowed.
- Judges
- RE Aburili
- Legal Topics
- Extension of Time, Pauper Appeals, Court Fees Waiver, Murder Conviction, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Okech Omollo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time and Waiver of Court Fees
Legal Issues
- 1 Whether the applicant is entitled to waiver of court fees for preparation of the record of appeal as a pauper.
- 2 Whether the applicant should be granted leave to file a notice of appeal out of time.
Ratio Decidendi
The court held that the applicant had not demonstrated pauperism by evidence, as required for waiver of court fees, and that the court had already ruled on this issue in a previous application, making it functus officio. However, the court exercised its discretion to grant leave to file a notice of appeal out of time, noting that a sworn affidavit was not strictly necessary for this aspect of the application and the delay was not inordinate. The prayer for waiver of court fees was declined, and the applicant was directed to pay for the preparation of the record of appeal and supply of proceedings.
Court Disposition
Application partially allowed.
Orders
- Prayer for waiver of court fees for preparation of record of appeal is declined.
- Applicant to pay for preparation of the record of appeal and supply of court proceedings.
Full Case Text
Judgment text and source record
24 paragraphs
Omollo v Republic (Miscellaneous Criminal Application E063 of 2022) [2022] KEHC 10353 (KLR) (20 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10353 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E063 of 2022
RE Aburili, J
June 20, 2022
Between
Jacob Okech Omollo
Applicant
and
Republic
Respondent
(Being an Application arising from conviction and sentence of Siaya in HCCRC No. E023/2021 and Misc. Cr. Application No. E058/2022)
Ruling
1. The applicant Jacob Okech Omollo was convicted and sentenced to serve 35 years imprisonment on 10/5/2021 vide HCR E023/2021 for the offence of Murder contrary to section 203 as read with section 204 of the Penal code.
2. On 23/5/2022 he filed an application before this court vide Misc. Cr. Application E058/2022 seeking to be allowed to appeal as a pauper. There was no sworn affidavit in support of that application.
3. The court declined and directed that the application pays for all the preparation, documentation and filing of the record of appeal, vide Ruling of 25/5/2022.
4. The applicant was then at Kisumu Maximum Prison. He is now at Kamiti Maximum Prison and has brought a similar application in addition, seeking for leave to file Notice of appeal out of time.
5. I have considered the application which is not supported by any sworn affidavit.
6. Whereas the court need not insist on a sworn affidavit in support of an application for extension of time for filing Notice of appeal as the delay is not inordinate, I find that pauperism is not an obvious fact. It must be demonstrated by evidence.
7. Furthermore, this court has already pronounced itself vide Misc. Cr. Application No. E058/2022 on the issue of pauperism of the applicant and directed the applicant to meet all the costs for preparation of the documents and record of appeal. I am therefore functus officio as no new material is before this court to review its earlier ruling.
8. I decline the prayer for waiver of court fees for preparation of a record of Appeal. The applicant to pay for the preparation of the record of Appeal and for supply of court proceedings. He is however granted leave to file a Notice of Appeal out of time and serve the Office of Director Public Prosecutions within 7 days of today. I so order. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 20TH DAY OF JUNE, 2022R.E. ABURILIJUDGE