IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E. M. GITHINJI, JA. (IN CHAMBERS)
CRIMINAL APPLICATION NO. 6 OF 2018
BETWEEN
DISMAS SIKUKU FWAMBA ALIAS PAUL ...................................APPLICANT
VERSUS
REPUBLIC.......................................................................................RESPONSENT
(Being an application to file appeal out of time from the High Court of Kenya at Bungoma
in
HIGH COURT CR. CASE NO. 27 OF 2005)
***********************************
RULING
This is an application for extension of time within which to file a Notice of Appeal.
Applicant depones in the supporting affidavit that after he was convicted and sentenced to suffer death for the offence of murder contrary to section 204 of the Penal Code, he lodged a Notice of Appeal in time while at Bungoma Prison and that after he was transferred to Kibos Maximum Prison it has come to his knowledge that his notice of appeal cannot be traced and that his appeal has not been registered.
Mr. Ketoo, the learned prosecuting counsel for the respondent does not oppose the application.
Having regard to the fact that the applicant has been sentenced to death; that the averment that the applicant indeed lodged a notice of appeal in time has not been controverted, the fact that death sentence is not now mandatory and that the application is not opposed, I exercise my discretion in favour of the applicant.
Accordingly, the application is allowed. The applicant to file a notice of appeal which automatically institutes an appeal within 7 days from the date hereof.
DATED and Delivered at Kisumu this 15th day of October, 2018.
E. M. GITHINJI
....................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
DEPUTY REGISTRAR