[2020] KEHC 2537 (KLR)
The court found that the applicant failed to provide any proof of a ruling or order granting leave to appeal out of time. Despite claims in the supporting affidavit, no such annexure or order was found in the court file, and counsel confirmed the absence of the same. The court further noted that references to a...
Source-derived case information.
- Citation
- [2020] KEHC 2537 (KLR)
- Parties
- Appellant: Samson Omamo Kodande; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 18 of 2019
- Procedural Posture
- Criminal Appeal / Ruling on Application to Reinstate Appeal
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Procedural Laches
- 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
Criminal Appeal / Ruling on Application to Reinstate Appeal
Legal Issues
- 1 Whether the applicant obtained leave of court to file the appeal out of time.
- 2 Whether there is sufficient proof of leave to appeal out of time.
- 3 Whether the application should be allowed despite laches.
Ratio Decidendi
The court found that the applicant failed to provide any proof of a ruling or order granting leave to appeal out of time. Despite claims in the supporting affidavit, no such annexure or order was found in the court file, and counsel confirmed the absence of the same. The court further noted that references to a Notice of Appeal were irrelevant to the proceedings. Due to lack of evidence of leave and the delay in bringing the application (laches), the court held that the application was without merit and dismissed it accordingly.
Court Disposition
application dismissed
Orders
- The application dated 3/8/2020 is dismissed for want of proof of leave to appeal out of time and for laches.
- The file is closed.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CRIMINAL APPEAL NO. 18 OF 2019
SAMSON OMAMO KODANDE.............................APPELLANT
VERSUS
REPUBLIC...............................................................RESPONDENT
(Appeal arising from Ruling in Criminal Case No. 739 of 2014 in the Principal Magistrate’s Court at Bondo dated 14. 6.2018 before Hon. M. Obiero, Principal Magistrate)
RULING
1. The Application dated 3/8/2020 was brought over one year since the appeal herein was struck out on 2/7/2019 for being incompetently filed without leave of court as it was filed outside the stated period of appeal.
2. In the ground and affidavit supporting the application as sworn by Ms. Peres Odero Advocate, she claims that she applied vide High Court Miscellaneous Criminal Application No. 8/2019and obtained leave of court to file the appeal and she claims to have annexed copy of Ruling in the said application. No such Ruling is annexed and neither is there any annexure marked PO1 or order granting leave.
3. I have given the court file to counsel holding brief to peruse the court file and identify such annexures or Ruling but he confirms to court that there is none. There are several letters dated 20/8/2020 addressed to the Deputy Registrar of this court Hon. Muthoni Mwangi, on invitation to the Human Tracking Training by Judicial Training Institute Director, which are irrelevant.
4. The paragraphs in the affidavit also allude to Notice of Appeal which is nonexistent and irrelevant to these proceedings.
5. For the above reasons and for want of proof of leave to appeal out of time and for laches, I hereby find no merit in this application which I hereby dismiss. File is closed
6. Orders accordingly.
Dated, signed and Delivered at Siaya this 7th Day of October, 2020.
R.E. ABURILI
JUDGE
In the Presence of:
Mr. Ochanyo Advocate holding brief for Ms Peres Odero Advocate
Mr. Okachi, Senior Principal Prosecution Counsel for State
Court Assistants: Brenda and Modestar