[2024] KEHC 10215 (KLR)
The court found that the applicant's intended appeal was not meritorious because he did not allege that he was denied an opportunity to mitigate and the sentence imposed was lawful. The court further held that section 333(2) of the Criminal Procedure Code does not constitute a ground for appeal, as the issue of time...
Source-derived case information.
- Citation
- [2024] KEHC 10215 (KLR)
- Parties
- Applicant: Dishon Wafula Simiyu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E094 of 2024
- Procedural Posture
- Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Defilement Offence, Sentencing, Leave to Appeal Out of Time, Mitigation, Section 333 2 Criminal Procedure Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dishon Wafula Simiyu
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds to warrant leave to appeal out of time.
- 2 Whether section 333(2) of the Criminal Procedure Code provides a basis for appeal on sentence.
Ratio Decidendi
The court found that the applicant's intended appeal was not meritorious because he did not allege that he was denied an opportunity to mitigate and the sentence imposed was lawful. The court further held that section 333(2) of the Criminal Procedure Code does not constitute a ground for appeal, as the issue of time spent in custody can be addressed by way of an application, provided the applicant demonstrates through lower court proceedings that he was not on bond during trial. Consequently, the application for leave to appeal out of time was dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application for leave to appeal out of time is dismissed.
- The file is closed.
Full Case Text
Judgment text and source record
21 paragraphs
Simiyu v Republic (Criminal Application E094 of 2024) [2024] KEHC 10215 (KLR) (15 August 2024) (Ruling)
Neutral citation: [2024] KEHC 10215 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Application E094 of 2024
RE Aburili, J
August 15, 2024
Between
Dishon Wafula Simiyu
Applicant
and
Republic
Respondent
(From the original conviction and sentence in Maseno SPM SO Case No. E017 of 2020 on 26th September, 2023 by Hon. C.L.Yalwala, SPM)
Ruling
1. The applicant is a convict of the offence of defilement under section 8(4) of the Sexual Offences Act. He was sentenced to serve ten years in prison. He applies for leave to appeal out of time. In his application, he states that the only reason he wishes to appeal is to mitigate and to seek for consideration of section 333(2) of the Criminal Procedure Code for the period spent in custody to be taken into account.
2. I have considered the application and the grounds in support. I do not find any merit in the intended appeal as the convict does not say that he was not allowed to mitigate. The sentence imposed was lawful. Section 333(2) of the Criminal Procedure Code cannot be a reason for an appeal as it can be considered even by way of an application as long as the convict files into court proceedings of the lower court to demonstrate that they were not on bond during the trial.
3. I find the application not merited. It is hereby dismissed
4. Signal to issue.
5. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 15THDAY OF AUGUST, 2024R.E. ABURILIJUDGE