[2024] KEHC 13682 (KLR)
The court found that the applicant failed to provide any reason for the inordinate delay in seeking leave to appeal out of time. Furthermore, the sentence imposed by the trial court was below the statutory minimum required by Section 8(2) of the Sexual Offences Act. The absence of a sworn affidavit or explanation...
Source-derived case information.
- Citation
- [2024] KEHC 13682 (KLR)
- Parties
- Applicant: Henry Ngesa Onganga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E215 of 2024
- 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, Sexual Offences, Sentencing Principles
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Ngesa Onganga
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 reason for the inordinate delay in seeking leave to appeal out of time.
- 2 Whether the sentence imposed was lawful given the statutory minimum under Section 8(2) of the Sexual Offences Act.
Ratio Decidendi
The court found that the applicant failed to provide any reason for the inordinate delay in seeking leave to appeal out of time. Furthermore, the sentence imposed by the trial court was below the statutory minimum required by Section 8(2) of the Sexual Offences Act. The absence of a sworn affidavit or explanation for the delay, coupled with the irregularity in sentencing, led the court to conclude that the application lacked merit and should be dismissed to prevent abuse of the appellate process and potential interference with court records.
Court Disposition
application dismissed
Orders
- The application dated 14th October 2024 is dismissed.
- Signal to issue.
Full Case Text
Judgment text and source record
23 paragraphs
Onganga v Republic (Miscellaneous Criminal Application E215 of 2024) [2024] KEHC 13682 (KLR) (7 November 2024) (Ruling)
Neutral citation: [2024] KEHC 13682 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Criminal Application E215 of 2024
RE Aburili, J
November 7, 2024
Between
Henry Ngesa Onganga
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Winam Senior Principal Magistrate’s Court Criminal Sexual Offences Case No. E037 of 2021)
Ruling
1. The applicant Henry Ngesa Onganga claims in his application dated 14th October 2024 seeks leave of court to file appeal out of time from Judgment and conviction in Winam SPM Sexual Offences Case No. E037 of 2021 on 1st September 2022 where he was sentenced to serve 20 years’ imprisonment under Section 8(2) of the Sexual Offences Act.
2. The section provides for mandatory life imprisonment upon conviction. The imposed sentence was below the statutory minimum.
3. There is no reason given in the affidavit which is not sworn for the inordinate delay.
4. This court is alive to the fact of some convicts who wait for a considerably long time to file appeals only for the appellate court to find that the lower court files are interfered with and even police files cannot be traced, all intended to defeat justice.
5. As there is no reason advanced for the inordinate delay from 1st September 2022 and as sentenced imposed is below mandatory minimum, I find no merit in the application dated 14th October 2024 which is hereby dismissed.
6. Signal to issue.
7. File closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 7THDAY OF NOVEMBER, 2024R. E. ABURILIJUDGE