[2023] KECA 1080 (KLR)
The court found that, given the applicant's conviction for murder and the imposition of a death sentence, coupled with the Supreme Court's finding that the mandatory death penalty is unconstitutional, the interests of justice warranted granting an extension of time to appeal. The respondent's concession further...
Source-derived case information.
- Citation
- [2023] KECA 1080 (KLR)
- Parties
- Applicant: Wilson Ajwang Adul; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E298 of 2022
- Procedural Posture
- Criminal Application / Ruling on Application for Waiver of Fees and Extension of Time to Appeal
- Outcome
- Application allowed in part.
- Judges
- M Ngugi
- Legal Topics
- Extension of Time, Waiver of Fees, Criminal Appeals, Mandatory Death Sentence, In Person Applicant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Ajwang Adul
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Waiver of Fees and Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant should be granted extension of time to file an appeal out of time.
- 2 Whether the applicant is entitled to a waiver of court fees for filing the appeal.
Ratio Decidendi
The court found that, given the applicant's conviction for murder and the imposition of a death sentence, coupled with the Supreme Court's finding that the mandatory death penalty is unconstitutional, the interests of justice warranted granting an extension of time to appeal. The respondent's concession further supported this outcome. Regarding the waiver of fees, the court held that such a waiver was unnecessary because criminal appellants are not required to pay fees for records of appeal, as these are prepared by the Court Registry. The Deputy Registrar was directed to facilitate the preparation and service of the record of appeal.
Court Disposition
Application allowed in part.
Orders
- Leave granted to the applicant to file his appeal out of time.
- The notice of appeal dated December 8, 2022 is deemed as duly filed.
Full Case Text
Judgment text and source record
21 paragraphs
Adul v Republic (Criminal Application E298 of 2022) [2023] KECA 1080 (KLR) (22 September 2023) (Ruling)
Neutral citation: [2023] KECA 1080 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Application E298 of 2022
M Ngugi, JA
September 22, 2023
Between
Wilson Ajwang Adul
Applicant
and
Republic
Respondent
(Being an application seeking waiver of fees and extension of time to file appeal out of time from the Judgment of the High Court of Kenya at Siaya, (Makau, J.) dated 6th October, 2017 in HCCRC No. 08 of 2016 Criminal Case 8 of 2016 )
Ruling
1. In his application dated December 8, 2022 brought under Rule 113(2) of the Court of Appeal Rules (Rule 118(2) of the 2022 Rules), the applicant seeks leave for waiver of fees and for extensions of time to file his appeal out of time. He bases his application on the grounds that he is in person, has been abandoned by his family and he is therefore not able to pay the fees required to file the appeal to this Court.
2. The applicant avers that he was convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code in Siaya HCCR No. 08 of 2016, (Makau, J) in a judgment dated October 17, 2017. I observe that the record indicates that the judgment was delivered on October 6, 2017, though both the applicant and the respondent refer to October 17, 2017 as the date of the judgment.
3. The respondent, represented by Senior Principal Prosecution Counsel Patrick Okang’o, does not oppose the application for extension of time. Mr. Okang’o notes in his submissions that while a delay of 5 years – from the date of the judgment on October 17, 2017 to the date the present application was filed – December 8, 2022 would ordinarily be considered inordinate, the fact that the applicant was sentenced to death and that the Supreme Court thereafter in Francis Karioko Muruatetu v Republic[2017]eKLR held the mandatory nature of the death sentence unconstitutional, the respondent concedes the application for extension of time.
4. Having considered the application and the submissions in response, and noting the concession by the State, I am satisfied that the application is merited. I therefore grant the applicant leave to file his appeal out of time. The notice of appeal dated December 8, 2022 is deemed as duly filed.
5. Regarding the prayer for waiver of fees, I believe that this is an unnecessary prayer as there is no requirement for criminal appellants to pay fees with respect to records of appeal, which are prepared by the Court Registry, which I hereby direct the Deputy registrar to facilitate the preparation of and service on the appellant and the respondent.
DATED AND DELIVERED AT KISUMU THIS 22ND DAY OF SEPTEMBER, 2023MUMBI NGUGI……………………………JUDGE OF APPEALI certify that this isa true copy of the originalDEPUTY REGISTRAR