[2018] KEHC 2684 (KLR)
The court held that the application was misconceived and misplaced because it sought to challenge a judgment that merely struck out an appeal as res judicata, rather than addressing the merits of the original conviction and sentence. Since the merits of the applicant's appeal had already been determined in Kisumu...
Source-derived case information.
- Citation
- [2018] KEHC 2684 (KLR)
- Parties
- Applicant: Stephen Oduor Odawa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Case 36 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- RE Aburili
- Legal Topics
- Res Judicata, Leave to Appeal Out of Time, Pauper Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Oduor Odawa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant can seek leave to appeal to the Court of Appeal out of time after the High Court struck out his previous appeal as res judicata.
- 2 Whether the application is properly before the court given the prior determination of the appeal on merit in Kisumu HCRA 121/2014.
Ratio Decidendi
The court held that the application was misconceived and misplaced because it sought to challenge a judgment that merely struck out an appeal as res judicata, rather than addressing the merits of the original conviction and sentence. Since the merits of the applicant's appeal had already been determined in Kisumu HCRA 121/2014, and the subsequent appeal was struck out for being res judicata, the applicant could not properly seek leave to appeal out of time from the High Court's procedural ruling. The proper course would have been to appeal the original merits decision, not to relitigate the matter through repeated applications in the High Court.
Court Disposition
application dismissed
Orders
- The application filed on 3/7/2018 is dismissed.
- This file is closed for archiving purposes.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISC. CRIMINAL NO. 36 OF 2018
(CORAM: R. E. ABURILI - J.)
STEPHEN ODUOR ODAWA...........................................................APPLICANT
VERSUS
REPUBLIC..................................................................................RESPONDENT
(Being an Appeal against the sentence dated 18/09/2014 in Criminal Case No. 34 of 2014 at UKWALA Law Courts before R.M. Oanda, Ag. PM)
And
(A Subsequent Judgment that was made on 23/3/2017 in Criminal Appeal No. 39 of 2015 at Siaya High Court before Hon. Justice J.A. Makau, Judge)
RULING
This matter is coming before this court for the third time. On 23/3/2017, Hon. Justice J.A. Makau dismissed HCCRA No. 39 of 2015 Stephen Oduor Odawa Vs Republicarising from Ukwala SRM Cr. Case No. 34 of 2014, on the ground that the Appellant was properly convicted and sentenced by the trial court and secondly that the Appeal was Res judicata Kisumu HCRA No. 121 of 2014 Stephen Oduor Odawa which was heard and determined and dismissed by a court of competent jurisdiction.
The Learned Judge made it clear that the Appellant should have filed his further Appeal to the Court of Appeal and not the same High Court. He held that the Appeal was therefore incompetent and struck it out. That was on 23/3/2017.
The Appellant convict did not heed the advice of the Learned Judge. He has once more dared to return to this court vide a different Misc. Cr. Application File No. 36 of 2018 after learning that Hon. J.A. Makau J has left the station and now he purports to seek for leave to appeal to the Court of Appeal out of time and as a pauper under Rule 113 of the Court of Appeal Rules.
This court notes that albeit the applicant seeks to challenge the judgment of Hon. Makau J dated 23/3/2017, he forgets that the said judgment simply struck out the Appeal No. 39/2015 on account that it was Res judicata Kisumu HCRA 121/2014.
Accordingly, I find that as the application does not seek to challenge the merits of the appeal namely Kisumu HCRA 121/2014 which determined his appeal on merit, the same is misplaced and misconceived.
The application filed on 3/7/2018 is hereby dismissed.
This file is closed for archiving purposes.
Dated, Signed and Delivered at SIAYA this 31st Day of October 2018.
R.E. ABURILI
JUDGE