[2024] KECA 1338 (KLR)
The court found that the applicant's explanation for the delay—namely, the failure to be supplied with the High Court judgment in time—was plausible and uncontested by the respondent. The court also considered the nature of the sentence being served and the lack of opposition from the respondent. Applying its...
Source-derived case information.
- Citation
- [2024] KECA 1338 (KLR)
- Parties
- Applicant: Barton Ong’angi Kenyatta; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E113 of 2024
- Procedural Posture
- Criminal Application / Ruling on Application for Extension of Time
- Outcome
- Application allowed.
- Judges
- MSA Makhandia
- Legal Topics
- Extension of Time, Criminal Appeals, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Barton Ong’angi Kenyatta
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant has provided a satisfactory explanation for the delay in filing the record of appeal.
- 2 Whether the court should exercise its discretion to extend time for filing and serving the record of appeal in a criminal matter.
- 3 Whether the intended appeal is arguable and not frivolous.
Ratio Decidendi
The court found that the applicant's explanation for the delay—namely, the failure to be supplied with the High Court judgment in time—was plausible and uncontested by the respondent. The court also considered the nature of the sentence being served and the lack of opposition from the respondent. Applying its discretionary power, the court determined that the circumstances justified an extension of time, despite the delay being significantly beyond the statutory period. The court was satisfied that the applicant had met the threshold for extension and allowed the application.
Court Disposition
Application allowed.
Orders
- Time for filing and serving the record of appeal is extended as prayed.
Full Case Text
Judgment text and source record
20 paragraphs
Barton Ong’angi Kenyatta v Republic (Criminal Application E113 of 2024) [2024] KECA 1338 (KLR) (1 October 2024) (Ruling)
Neutral citation: [2024] KECA 1338 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Application E113 of 2024
MSA Makhandia, JA
October 1, 2024
Between
Barton Ong’angi Kenyatta
Applicant
and
Republic
Respondent
(Being an Application seeking extension of time to file and serve Record of Appeal against the Judgment of the High of Kenya at Nyamira, (Maina, J.) delivered in the year 2020 in HCCRA No. 616 of 2020)
Ruling
1. I have carefully read and considered the application, the supporting affidavit of the applicant as well as the submissions of the respondent. I note that the applicant did not file submissions in support of the application.
2. However, the respondent supports the application in its submissions. The application seeks extension of time within which to file and serve record of appeal. The reason given by the applicant for not filing the appeal on time was that he was not supplied with the High Court judgment on time. This fact has not been contested by the respondent. If anything and as already stated, the respondent does not oppose the application. I am aware that the power to extend time is discretionary exercisable by court upon satisfactory reason(s) being given for the delay. It is trite that the entire period of delay has to be explained to the satisfaction of the Court.
3. I am also aware that in considering whether to extend time, the court is obliged to consider whether the intended appeal is arguable and has chances of success, hence not frivolous. In this application, the delay is slightly over 4 years. This period is outrightly outside the 14 days period required by law to file a criminal appeal. It thus requires a plausible explanation to warrant an extension.
4. Having considered the reason for the delay, being failure to be supplied with the High Court’s judgment in time and the nature of the sentence being served by the applicant and the fact that the respondent is not opposed to the application, I will exercise my unfettered discretion and allow the application.
DATED AND DELIVERED AT KISUMU THIS 1ST DAY OF OCTOBER, 2024. ASIKE-MAKHANDIA...............................JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR