[2022] KEHC 13896 (KLR)
The court found that the applicant failed to provide any affidavit or credible evidence explaining the two-year delay in seeking leave to appeal out of time. The applicant's claim of not being supplied with court proceedings was unsubstantiated, as there was no record of any request for proceedings or judgment being...
Source-derived case information.
- Citation
- [2022] KEHC 13896 (KLR)
- Parties
- Applicant: SAO; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E095 of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Leave to Appeal Out of Time, Defilement Offence, Sentence Review, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SAO
Applicant
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 reason for the delay in filing an appeal out of time.
- 2 Whether the application for leave to appeal out of time is an abuse of court process.
Ratio Decidendi
The court found that the applicant failed to provide any affidavit or credible evidence explaining the two-year delay in seeking leave to appeal out of time. The applicant's claim of not being supplied with court proceedings was unsubstantiated, as there was no record of any request for proceedings or judgment being denied, and the documents were available, typed, and certified. The court concluded that the application was mischievous, amounted to an abuse of court process, and that the applicant was guilty of inordinate and unexplained delay. Consequently, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 22/8/2022 is dismissed.
- File closed.
Full Case Text
Judgment text and source record
22 paragraphs
SAO v Republic (Miscellaneous Criminal Application E095 of 2022) [2022] KEHC 13896 (KLR) (11 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13896 (KLR)
Republic of Kenya
In the High Court at Siaya
Miscellaneous Criminal Application E095 of 2022
RE Aburili, J
October 11, 2022
Between
SAO
Applicant
and
Republic
Respondent
(Being an Application arising from Judgment, conviction and sentence in Chief Magistrate’s court at Siaya in Sexual Offence Case No. 52 of 2019 by Hon. M. Mwangi Resident Magistrate on 12. 6.2019 AND in Siaya HCCA No. 51/2019 and in Siaya HCR Misc. Application No. E046/2022)
Ruling
1. The applicant is SAO. He was also the appellant in HCRA 51/2019 which was determined on 5/5/2020 dismissing the appeal against conviction and allowing the appeal against sentence. The life imprisonment imposed on the applicant was set aside and substituted with 50 years’ imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offence Act which sentence was imposed by Hon M. Mwangi Resident Magistrate on 12/6/2019.
2. The applicant filed an application before this court vide HCR Miscellaneous Application E046/2022 seeking leave to appeal out of time but this court dismissed the application on 16/5/2022. As there was no affidavit explaining the reason for the two years delay.
3. The applicant is back saying he was not supplied with court proceedings in time. There is no evidence that the applicant ever applied for court proceedings and or judgment in HCRA 51/2019 and was denied as the proceedings and judgment are available, typed and certified.
4. I find this application to be mischievous and an abuse of court process.
5. The applicant is guilty of inordinate and unexplained delay. The application dated 22/8/2022 is hereby dismissed.
6. File closed.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 11TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE