[2024] KEHC 10057 (KLR)
The court found that the applicant was unable to file his appeal within the originally granted seven-day period due to the registry's failure to serve the prison authorities with the order granting leave to appeal. Recognizing that this administrative lapse was not the fault of the applicant and that justice...
Source-derived case information.
- Citation
- [2024] KEHC 10057 (KLR)
- Parties
- Applicant: Nelson George Ochieng Opiyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E102 of 2024
- Procedural Posture
- Criminal Application / Ruling on Extension of Time to Appeal
- Outcome
- Application for enlargement of time granted.
- Judges
- RE Aburili
- Legal Topics
- Extension of Time, Leave to Appeal, Defilement Offence, Sexual Offences Act Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson George Ochieng Opiyo
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file an appeal out of time against conviction and sentence for defilement.
- 2 Whether failure by the registry to serve the prison authorities with the leave order justifies enlargement of time.
Ratio Decidendi
The court found that the applicant was unable to file his appeal within the originally granted seven-day period due to the registry's failure to serve the prison authorities with the order granting leave to appeal. Recognizing that this administrative lapse was not the fault of the applicant and that justice requires parties to be given a fair opportunity to exercise their rights, the court exercised its discretion to enlarge the time for filing the appeal. The applicant was granted a further seven days from the date of service of the order upon him in prison to file his appeal. The court also recalled the mention dates and closed the current file, as the appeal would proceed in a...
Court Disposition
Application for enlargement of time granted.
Orders
- The order for leave to appeal out of time is reviewed and the applicant is granted a further seven days from the date of service of this order upon him in prison to file his appeal.
- Mention dates are recalled and this file is closed.
Full Case Text
Judgment text and source record
22 paragraphs
Opiyo v Republic (Criminal Application E102 of 2024) [2024] KEHC 10057 (KLR) (14 August 2024) (Ruling)
Neutral citation: [2024] KEHC 10057 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Application E102 of 2024
RE Aburili, J
August 14, 2024
Between
Nelson George Ochieng Opiyo
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Kisumu CM SO Case NO.E001 of 2022 of 2022)
Ruling
1. On 23/7/2024, the applicant was granted leave to file an appeal out of time from the judgment, conviction and sentence in Kisumu CM SO Case No. E001 of 2022 wherein he was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual offences Act and sentenced to serve twenty years imprisonment on 14. 8.2023
2. . The applicant was to file an appeal within seven days of the date of the order. The matter was then scheduled for mention on 1/8/2024 to confirm compliance.
3. On the latter date, nothing transpired. Regrettably, the registry intimates that the prisons authorities were never served or notified of the order for leave to appeal as issued by the court and therefore what that means is that the timelines were given in vain as they lapsed without the applicant getting the orders for compliance in time. The registry has given a further mention date being 16/10/2024.
4. That being the case, and in the interest of justice, I hereby review the order on timelines given in the order for leave to appeal out of time which has lapsed and enlarge the same by a further seven days from date of service of the order herein upon the applicant in prison.
5. Signal to issue forthwith.
6. As the appeal shall be filed in a different separate file, the mention dates are recalled and this file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF AUGUST, 2024R.E. ABURILIJUDGE