[2021] KEHC 7852 (KLR)
The court found that the application was incompetent due to the supporting affidavit not being commissioned. Additionally, the applicant failed to demonstrate any points of law that could be canvassed on a second appeal, as required for leave to appeal out of time. The court held that being in prison does not equate...
Source-derived case information.
- Citation
- [2021] KEHC 7852 (KLR)
- Parties
- Applicant: Samson Onyango Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Judgment Date
- 14 April 2021
- Case Number
- Miscellaneous Criminal Application E069 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal to the Court of Appeal Out of Time
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal, Out of Time Application, Pauper Appeal, Incest Conviction
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Onyango Ochieng
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal to the Court of Appeal Out of Time
Legal Issues
- 1 Whether the applicant is entitled to leave to appeal to the Court of Appeal out of time.
- 2 Whether the applicant has demonstrated points of law capable of being canvassed on a second appeal.
- 3 Whether the application is competent given the uncommissioned affidavit.
Ratio Decidendi
The court found that the application was incompetent due to the supporting affidavit not being commissioned. Additionally, the applicant failed to demonstrate any points of law that could be canvassed on a second appeal, as required for leave to appeal out of time. The court held that being in prison does not equate to being a pauper and that there was no legal basis for granting the orders sought. Consequently, the application was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for leave to appeal to the Court of Appeal out of time is dismissed.
- This file is 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. E069 OF 2021
CORAM: R.E. ABURILI, J
SAMSON ONYANGO OCHIENG....................................................APPLICANT
VERSUS
REPUBLIC......................................................................................RESPONDENT
(Application for leave to appeal to the court of Appeal under Rule 113 of the Court of Appeal Rules, from the Judgment in Siaya High Court Criminal Appeal No. 44 of 2019 delivered on 24th March, 2021)
RULING
1. I have considered the application filed on 7/4/2021, supported by an ‘affidavit’ which is not commissioned. The Application is incompetent.
2. That notwithstanding, nothing prevented the Applicant/convict from filing his Notice of appeal in time. Further, being in prison is not being a pauper.
3. In addition, in this application seeking leave to appeal to the Court of Appeal out of time, and as pauper, the applicant who was convicted of incest and who, on a first appeal only asked this court to consider the sentence imposed on him by the trial court must demonstrate points of law capable of being canvassed on a second appeal. There is no demonstration of points of law for determination by the Court of Appeal as the sentence imposed and confirmed by this court was lawful sentence.
4. I find the application devoid of merit.
5. I dismiss it and this File is closed.
6. Orders accordingly.
DATED, SIGNED AND DELIVERED AT SIAYA, THIS 14TH DAY OF APRIL 2021
R.E. ABURILI
JUDGE