Aswera v Republic (Criminal Application E090 of 2024) [2024] KECA 1342 (KLR)

Court of Appeal of Kenya

2 October 2024

ASAsike-Makhandia

471 words in judgment

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The bottom line

Kenya's Court of Appeal let a prisoner appeal late against his death sentence, because the State did not oppose and he was unrepresented.

What this practically means

Executive summary

This is a single-judge decision of the Court of Appeal at Kisumu, delivered by Asike-Makhandia JA on 2nd October 2024, on an application for extension of time. The applicant had been convicted of murder contrary to section 203 as read with section 204 of the Penal Code and sentenced to death, at a time when the sentence was mandatory. Relying on the Supreme Court's decision in Muruatetu & Others v Republic [2017] eKLR, he petitioned the High Court at Kisii for re-sentencing, but Kimemia J. dismissed the petition in its entirety by a ruling delivered on 7th March 2024. The applicant then sought to appeal to the Court of Appeal but was out of time under the 14-day filing rule. The application was supported only by its face; the referenced supporting affidavit was not annexed, no submissions were filed, and no replying affidavit was lodged by the respondent, which the court noted placed it in an 'unnecessary handicap in the fair determination' of the application. However, the respondent stated in its written submissions that it did not oppose the application, and the court took account of the applicant acting in person. Concluding that the intended appeal is a first appeal limited to sentence, on which the applicant may argue law, fact and sentence, the judge exercised his discretion in the applicant's favour and allowed the application as prayed. No costs order was recorded. The decision below was not disturbed; this ruling merely opens the door to the intended appeal.

Key legal issues

Whether extension of time should be granted despite the applicant's failure to explain the delay and failure to attach a supporting affidavit

Holding

The court allowed the application, taking into account that the respondent did not oppose the application, the intended appeal being limited to sentence, and the applicant acting in person

Reasoning

The application was supported only by its face and lacked the supporting affidavit it referenced, and no submissions were filed; no rebuttal was filed by the respondent either. The respondent nonetheless conceded in its written submissions that it did not oppose the application. Given the intended first appeal would be limited to the death sentence, and considering the applicant was unrepresented, the court exercised its discretion in his favour.

p. 2

The scope of the intended appeal as a first appeal on sentence

Holding

An intended first appeal against a re-sentencing decision may be on matters of law, fact and sentence

Reasoning

Because the applicant was tried and convicted at first instance and the High Court merely dismissed his re-sentencing petition, the intended appeal to the Court of Appeal is a first appeal in nature, entitling the applicant to appeal on law, fact and sentence, though he intends to challenge only the sentence.

p. 2

Legal principles established

Court orders

1.The application for extension of time to file the appeal is allowed as prayed
2.The intended appeal is to be limited to the sentence of death imposed on the applicant

Authorities

Legislation

Penal Codesection 203 as read with section 204

Cases cited (1)

Muruatetu & Others v Republic
[2017] eKLR

On appeal from: High Court of Kenya at Kisii
Jurisdiction invoked: Inherent/appellate jurisdiction of the Court of Appeal to extend time for filing an appeal; the intended appeal lies against a re-sentencing ruling of the High Court

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Aswera v Republic (Criminal Application E090 of 2024) [2024] KECA 1342 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1342/eng@2024-10-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.