[2023] KEHC 3827 (KLR)
The court found that the applicant failed to provide any explanation for the nearly two-year delay in filing the application for leave to appeal out of time. Furthermore, the court was not persuaded that the intended appeal was arguable, especially considering that the sentence imposed was already lenient compared...
Source-derived case information.
- Citation
- [2023] KEHC 3827 (KLR)
- Parties
- Applicant: Nashon Atingo Omukanakana; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E060 of 2022
- 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, Robbery With Violence, Sentencing, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nashon Atingo Omukanakana
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 delay in filing the appeal out of time.
- 2 Whether the intended appeal is arguable to warrant grant of leave to appeal out of time.
Ratio Decidendi
The court found that the applicant failed to provide any explanation for the nearly two-year delay in filing the application for leave to appeal out of time. Furthermore, the court was not persuaded that the intended appeal was arguable, especially considering that the sentence imposed was already lenient compared to the statutory mandatory death sentence for robbery with violence. The application was deemed an afterthought, and the delay was found to be inordinate and unexplained. Consequently, the court declined to grant leave to appeal out of time and dismissed the application.
Court Disposition
application dismissed
Orders
- The application dated May 9, 2022 and filed on May 10, 2022 is dismissed.
- This file is closed.
Full Case Text
Judgment text and source record
20 paragraphs
Omukanakana v Republic (Miscellaneous Criminal Application E060 of 2022) [2023] KEHC 3827 (KLR) (2 May 2023) (Ruling)
Neutral citation: [2023] KEHC 3827 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E060 of 2022
RE Aburili, J
May 2, 2023
Between
Nashon Atingo Omukanakana
Applicant
and
Republic
Respondent
Ruling
1. This application was filed on May 10, 2022 nearly one (1) year ago. The Applicant Nashon Atingo Omukanakana seeks leave of court to file an appeal against sentence out of time. The date of conviction and sentence in Maseno Senior Principal Magistrate Criminal Case No. 185 of 2019 is August 20, 2020 which is over 2. 5 years ago.
2. The application was filed after nearly two years after sentencing. The applicant claims that he was convicted of the offence of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to serve thirty (30) years imprisonment.
3. There is no explanation for the delay. In addition, the sentence of thirty (30) years imprisonment as imposed for the offence of robbery with violence is lenient and way below the Mandatory death sentence.
4. I am not persuaded that the intended appeal is arguable. I find the delay inordinate and unexplained. The application is an afterthought. I decline to grant leave to appeal out of time and dismiss the application dated May 9, 2022 and filed in court on May 10, 2022.
5. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 2ND DAY OF MAY, 2023R. E. ABURILIJUDGE