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|Case Number:||Misc. Cr. App. 11 of 2008|
|Parties:||DAVID RUTO KIPKOECH v REPUBLIC|
|Date Delivered:||16 Dec 2008|
|Court:||High Court at Kericho|
|Citation:||DAVID RUTO KIPKOECH v REPUBLIC  eKLR|
[RULING] CRIMINAL PROCEDURE- Appeal- application for leave to file appeal out of time- applicant charged with entering a house with intent to commit a felony and indecent assault-appeal against conviction and sentence- where applicant pleaded guilty- where sentence was excessive- application not opposed- whether applicant has a good success and chance in the appeal- whether application was allowed
Sexual Offences Act Section 11(1); Criminal Procedure Code Section 348
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
DAVID RUTO KIPKOECH ……………..………………APPELLANT
Leave to appeal out of time
Notice of Motion 4th November, 2008
1. On the 13th November, 2008 the applicant/proposed appellant filed a Notice of Motion dated 4th November, 2008 seeking for leave to appeal against the conviction and sentence on two counts brought against him.
2. The first count being
“entering a dwelling house with intent to commit a felony”
The second count being
“indecent (assault) act with a child contrary to section 11(1) of the sexual offences act No. 3 of 2006.
3. The applicant pleaded guilty to both counts and was duly sentenced.
4. The applicant prays to be permitted to appeal out of time as his constitutional rights had been violated and that the sentence was excessive.
1: Arguments by the applicant
5. Although the application was not opposed by the state, the applicant argued that a plea of guilty had been made. This though is not an absolute bar to an appeal. (Ndede v R(1991) KLR 567) Further, the appellant has a good success and chance in the appeal.
The state had no objection to the application and did not intend to oppose it.
7. This Court is of the opinion that in principle a plea of not guilty should not be allowed on appeal under section 348 of the criminal procedure code. What is in issue is, to produce previous conviction without it being before the court? I do not have the original file to verify this.
I allow the application. That an appeal be filed within 14 days. This though will be subject to admission process of an appeal.
DATED this 16th day of December, 2008 at Kericho
W.R. Kiprono instructed by M/S W.R. Kiprono & Co. advocates
for the Applicant
R.K. Koech state counsel instructed by the Attorney General for the state