[2023] KEHC 18039 (KLR)
The court found that the applicant had already filed an appeal (Kericho HCCRA No 56 of 2015), which was heard and dismissed by Hon Lady Justice Ongeri on January 22, 2021. Therefore, the application for leave to appeal out of time was without merit as the applicant had already exercised his right of appeal....
Source-derived case information.
- Citation
- [2023] KEHC 18039 (KLR)
- Parties
- Applicant: Duncan Kiplangat Too; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 19 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- JK Sergon
- Legal Topics
- Leave to Appeal Out of Time, Res Judicata, Sentence Adjustment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Duncan Kiplangat Too
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time.
- 2 Whether the issue of sentence adjustment is res judicata.
Ratio Decidendi
The court found that the applicant had already filed an appeal (Kericho HCCRA No 56 of 2015), which was heard and dismissed by Hon Lady Justice Ongeri on January 22, 2021. Therefore, the application for leave to appeal out of time was without merit as the applicant had already exercised his right of appeal. Regarding the oral prayer for sentence adjustment, the court held that the issue had already been raised and determined in the dismissed appeal, rendering it res judicata. Consequently, the application was dismissed in its entirety.
Court Disposition
application dismissed
Orders
- The application dated December 23, 2019 is dismissed.
Full Case Text
Judgment text and source record
26 paragraphs
Too v Republic (Miscellaneous Criminal Application 19 of 2019) [2023] KEHC 18039 (KLR) (18 May 2023) (Ruling)
Neutral citation: [2023] KEHC 18039 (KLR)
Republic of Kenya
In the High Court at Kericho
Miscellaneous Criminal Application 19 of 2019
JK Sergon, J
May 18, 2023
Between
Duncan Kiplangat Too
Applicant
and
Republic
Respondent
(Appeal was heard and dismissed by the Hon Lady Justice Ongeri on January 22, 2021. Criminal Appeal 46 of 2015 )
Ruling
1. Duncan Kiplangat Too, the Applicant herein filed the Application dated December 23, 2019 whereof he sought for leave to Appeal out of time. He swore an Affidavit he filed in support of the Application.
2. The applicant deponed in the Affidavit that he failed to file the Appeal within time the time fixed by statute because at the time, he was not within his right senses.
3. Mr Musyoki, Learned Senior Assistant Director of Public Prosecutions opposed the applicant’s Application stating that the same has no merit.
4. The applicant further stated that he wanted the period he served in custody to be included so that the sentence imposed can be adjusted.
5. Mr Musyoki did not address this Court on the issue of re-sentencing and instead left it to this court to determine the issue.
6. I have considered the arguments put forward by the parties. Two issues arose for the determination of this Court.First, is the question as to whether leave to Appeal out of time should be granted. Mr Musyoki has already pointed out that the application has no merit.
7. I took the liberty peruse the Original file and other Files relating to the applicant. It has come to the attention of this Court that the applicant had actually filed an Appeal namely:- Kericho HCCRA No 56 of 2015 –Duncan Kiplangat Too vs Republic
8. The aforesaid appeal was heard and dismissed by the Hon Lady Justice Ongeri on January 22, 2021. In view of the aforegoing, I find the application seeking for leave to Appeal out of time to be without merits.
9. As regards the Second Oral Prayer on interference of the sentence, I find that the issue was raised in the Petition of Appeal which Appeal was dismissed by Hon Lady Justice Ongeri. The issue appears to be res judicata.
10. In the end, I find the Application filed on December 23, 2019 to be without merit. The same is dismissed.
DATED, SIGNED AND DELIVERED THIS 18TH DAY OF MAY, 2023. ………….…………….J.K. SERGONJUDGEIn the presence of:C/Assistant – RutohMr. Musyoki for the StateApplicant – Present in Person