[2025] KEHC 493 (KLR)
The court found that the applicant had previously filed a similar application for leave to appeal out of time, which was dismissed by Aburili J on 23/9/2022. The applicant did not appeal or seek review of that dismissal. Filing a fresh application on the same issue, without addressing the previous determination,...
Source-derived case information.
- Citation
- [2025] KEHC 493 (KLR)
- Parties
- Applicant: Patrick Owino Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E091 of 2024
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- DK Kemei
- Legal Topics
- Leave to Appeal Out of Time, Abuse of Court Process, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Owino Otieno
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to leave to lodge an appeal out of time against the judgment in Bungoma HCCR No. 9 of 2019.
- 2 Whether the present application constitutes an abuse of the court process in light of a previous similar application that was dismissed.
Ratio Decidendi
The court found that the applicant had previously filed a similar application for leave to appeal out of time, which was dismissed by Aburili J on 23/9/2022. The applicant did not appeal or seek review of that dismissal. Filing a fresh application on the same issue, without addressing the previous determination, constitutes an abuse of the court process. The applicant's affidavit failed to provide reasons for the delay in filing the appeal, focusing instead on the merits of the intended appeal. In the absence of any appeal or review against the earlier order, the present application was held to be devoid of merit and an abuse of process, warranting dismissal.
Court Disposition
application dismissed
Orders
- The application filed on 16/10/2024 is dismissed.
- No leave is granted to lodge an appeal out of time.
Full Case Text
Judgment text and source record
18 paragraphs
Otieno v Republic (Miscellaneous Criminal Application E091 of 2024) [2025] KEHC 493 (KLR) (17 January 2025) (Ruling)
Neutral citation: [2025] KEHC 493 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E091 of 2024
DK Kemei, J
January 17, 2025
Between
Patrick Owino Otieno
Applicant
and
Republic
Respondent
Ruling
1. The Applicant herein Patrick Owino Otieno filed the present application on 13/8/2024 seeking for leave to lodge an appeal out of time to the Court of Appeal against the judgment of Aburili J, dated 16/12/2021 in Bungoma HCCR No. 9 of 2019. The affidavit in support thereof appear to contain averments over the intended appeal and not reasons for seeking to lodge appeal out of time.
2. I have given due consideration to the application. It is not in dispute that the Applicant was convicted and sentenced by this court vide HCCR No. 9 of 2019. It is also not in dispute that the Applicant was to lodge appeal within 14 days of the delivery of the sentence, if aggrieved, to the Court of Appeal. It is not in dispute that the Applicant later filed an application vide Siaya High Court Misc. Application No. 100 of 2022 seeking for leave to lodge an appeal to the Court of Appeal which was duly dismissed by Aburili J, on 23/9/2022. It is also not in dispute that the Applicant has neither lodged an appeal against the order of 23/9/2022 nor filed an application seeking review of the said orders. That being the position, I find the Applicant’s application is an abuse of the court process since the same cannot be entertained in isolation yet there had been a similar application by Applicant which was duly determined. The conduct of the Applicant in filing a fresh and similar application yet fully aware that his earlier application had been determined smacks of bad faith on his part. In the absence of the appeal or application for review against the orders dated 23/9/2022, the present application is clearly an abuse of the court process and must be rejected.
3. In the result, it is my finding that the Applicant’s application filed on 16/10/2024 is devoid of merit. The same is dismissed.
DATED AND DELIVERED AT SIAYA THIS 17THDAY OF JANUARY, 2025D. KEMEIJUDGEIn the presence of:Patrick Owino Otieno……….ApplicantM/s Kerubo……………..for RespondentMboya………………….Court Assistant