[2019] KEHC 6743 (KLR)
The court found that although there was a delay in bringing the application, the applicant provided a satisfactory explanation based on illness and financial hardship. The court noted that no prejudice would be occasioned to any party by granting the extension. Applying Section 349 of the Criminal Procedure Code,...
Source-derived case information.
- Citation
- [2019] KEHC 6743 (KLR)
- Parties
- Appellant: Samson Omamo Kodande; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 8 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Criminal Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Omamo Kodande
Appellant
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 court should exercise its discretion to grant leave to appeal out of time under Section 349 of the Criminal Procedure Code.
Ratio Decidendi
The court found that although there was a delay in bringing the application, the applicant provided a satisfactory explanation based on illness and financial hardship. The court noted that no prejudice would be occasioned to any party by granting the extension. Applying Section 349 of the Criminal Procedure Code, the court exercised its discretion to allow the applicant to file an appeal out of time, concluding that the explanation for delay was reasonable and justified the grant of leave.
Court Disposition
leave to appeal out of time granted
Orders
- Leave is granted to the applicant to file an appeal within 14 days from the date of the ruling.
- If the appeal is not filed within 14 days, the leave granted lapses.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL APPLICATION NO. 8 OF 2019
SAMSON OMAMO KODANDE.............APPELLANT
VERSUS
REPUBLIC............................................ RESPONDENT
RULING:
1. The Application dated 13. 2.2019 seeks leave of court to appeal out of time against the conviction and sentence passed on 14. 6.2018 by Bondo Magistrate’s Court.
2. The same is supported by grounds and supporting affidavit sworn by Samson Omamo Kodande on 13. 2.2019. The Applicant claims that he received court proceedings on 18. 7.2018 but fell ill and could not instruct his advocate because he also had financial challenges.
3. The State has nothing to say. Leave to appeal out of time can be granted as stipulated the proviso to Section 349 in section of the Criminal Procedure Code where the applicant did not get proceedings in good time and where there is a satisfactory explanation for the delay.
4. In addition, where, despite the delay, there is no prejudice occasioned to any party or the explanation given is satisfactory, the Court can grant leave.
5. There is delay in bringing the application but there is an explanation which hinges on the social issues. The applicant is said to have been sick, he sought traditional medication and that he had no money to instruct an advocate. In my humble view, despite the delay, there is an explanation and no prejudice is occasioned.
6. I grant leave to file an appeal within 14 days of today in default, the leave granted lapses. This file is closed.
7. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 5TH DAY OF MARCH 2019.
HON. LADY JUSTICE R.E. ABURILI
JUDGE