Meshack Oduol Alara v Republic [2018] KEHC 4671 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT SIAYA

MISC. CR. APPL. NO. 53 OF 2018

(CORAM: R. E. ABURILI - J.)

MESHACK ODUOL ALARA.................APPLICANT

VERSUS

REPUBLIC............................................RESPONDENT

RULING ON APPLICATION

The Applicant, Meshack Oduol Alarafaced the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code in that on 28th day of August 2016 at Nguge Sub-location, Gem Sub-County within Siaya County, murdered Meshack Opicha Wagunda.

He pleaded not guilty to the charge and was tried before Hon. Makau J and found guilty of the charge of murder and sentenced to death on 2nd February 2018.

On 3rd July 2018, he lodged a Notice of Appeal 5 months after the conviction and sentence.  He now seeks by his application and affidavit sworn on 16th March 2018 leave to file an appeal out of time as a poor person under Rule 113(2) (5) of the Court of Appeal Rules,claiming he is poor by virtue of his imprisonment among other grounds.

This court observes that the intended appeal is a first appeal which accommodates grounds on both questions of law and fact.

Albeit I do not find imprisonment not being a reason why one would be poor, I find that this is a suitable case where the court can exercise its discretion to accord the convict an opportunity to challenge death sentence meted out on him as it is not a mandatory sentence.

Accordingly, I allow the application and direct that the Notice of Appeal be deemed to be duly filed and served in time.  However, the Applicant/ Appellant shall pay into Court Kshs. 15,000/= for preparation of record of Appeal.

Dated, Signed and Delivered at SIAYA this 31ST day of July 2018.

R.E. ABURILI

JUDGE