[2021] KEHC 5593 (KLR)
The court found that the application for leave to appeal out of time was fatally and incurably incompetent because it was neither signed nor was the supporting affidavit sworn before a commissioner of oaths or magistrate. As such, there was nothing before the court capable of being withdrawn. The court accordingly...
Source-derived case information.
- Citation
- [2021] KEHC 5593 (KLR)
- Parties
- Applicant: Republic; Respondent: Angela Akumu Sewe
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E082 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application struck out
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Procedural Incompetence, Application Struck Out
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Angela Akumu Sewe
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the application for leave to appeal out of time is competent before the court.
- 2 Whether an unsigned and unsworn application can be withdrawn or sustained.
Ratio Decidendi
The court found that the application for leave to appeal out of time was fatally and incurably incompetent because it was neither signed nor was the supporting affidavit sworn before a commissioner of oaths or magistrate. As such, there was nothing before the court capable of being withdrawn. The court accordingly struck out the application and closed the file, emphasizing the necessity for strict compliance with procedural requirements in filing court applications.
Court Disposition
application struck out
Orders
- The application is struck out as fatally and incurably incompetent.
- File closed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL APPLICATION NO. E082 OF 2021
CORAM: HON. R.E. ABURILI, J
REPUBLIC.................................................APPLICANT
VERSUS
ANGELA AKUMU SEWE.......................RESPONDENT
(Being an Application for leave to appeal out of time from
acquittal in Siaya Principal Magistrate Court Cr. Case No. 321
of 2020 on 30. 3.2021 by Hon. J. O. Ongondo, Senior Principal Magistrate)
RULING
1. The applicant in this matter is the ODPP seeking leave to appeal out of time. At the hearing of the application, Ms Nambisia Prosecution Counsel sought to withdraw the application. The “application” before court is fatally and incurably incompetent. It is neither signed nor the “supporting affidavit” sworn before any commissioner of Oaths or Magistrate.
2. It is hereby struck out as there is nothing capable of being withdrawn.
3. File closed.
4. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 30TH DAY OF JUNE 2021
R.E. ABURILI
JUDGE