[2025] KECA 829 (KLR)
The court found that the applicant's delay of 1 year and 8 months in filing the appeal was not inordinate given the explanation that he was in custody and was not supplied with the proceedings in time. The court exercised its discretion under rule 4 of the Court of Appeal Rules, holding that the applicant had...
Source-derived case information.
- Citation
- [2025] KECA 829 (KLR)
- Parties
- Applicant: Wesley Kipkemoi Cheruiyot; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E244 of 2024
- Procedural Posture
- Criminal Application / Application for Leave to File Appeal Out of Time
- Outcome
- application allowed
- Judges
- WK Korir
- Legal Topics
- Extension of Time, Appeals Process, Defilement Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wesley Kipkemoi Cheruiyot
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the appeal out of time.
- 2 Whether the delay of 1 year and 8 months is inordinate and justifies refusal of leave to appeal out of time.
- 3 Whether the applicant's custody status and inability to obtain proceedings in time constitute reasonable grounds for delay.
Ratio Decidendi
The court found that the applicant's delay of 1 year and 8 months in filing the appeal was not inordinate given the explanation that he was in custody and was not supplied with the proceedings in time. The court exercised its discretion under rule 4 of the Court of Appeal Rules, holding that the applicant had provided a satisfactory explanation for the delay. The respondent's lack of opposition, considering the lengthy sentence, further supported the decision to allow the application. Consequently, the court granted leave to file the appeal out of time and deemed the notice of appeal as properly filed.
Court Disposition
application allowed
Orders
- The notice of motion is allowed.
- The applicant’s notice of appeal dated 10th December 2024 is deemed as properly filed.
Full Case Text
Judgment text and source record
22 paragraphs
Cheruiyot v Republic (Criminal Application E244 of 2024) [2025] KECA 829 (KLR) (9 May 2025) (Ruling)
Neutral citation: [2025] KECA 829 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E244 of 2024
WK Korir, JA
May 9, 2025
Between
Wesley Kipkemoi Cheruiyot
Applicant
and
Republic
Respondent
(Being an application for leave to file an appeal out of time against the judgment of the High Court at Narok (F. Gikonyo, J.) dated 24th April 2023 in HCCRA No. 13 of 2019)
Ruling
1. In the notice of motion dated 10th December 2024, the applicant, Wesley Kipkemoi Cheruiyot, seeks leave to file an appeal out of time. The applicant’s appeal before the High Court was dismissed on 24th April 2023. He had been convicted by the trial court of the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act and sentenced to 25 years imprisonment. The application is supported by his affidavit and is premised on the grounds that he could not obtain the proceedings and a copy of the judgment in time to file the appeal. He also annexed a notice of appeal lodged with the High Court on the date of the application and a memorandum of appeal containing six grounds which he is desirous of pursuing on appeal before this Court.
2. When the matter came up for hearing in chambers on 20th March 2025, only the respondent had filed submissions. Regardless, the matter proceeded to hearing.
3. Through submissions dated 19th February 2025, the Senior Assistant Director of Public Prosecutions, Mr. Omutelema indicated that although the period of delay was inordinate, the respondent was not opposed to the enlargement of the time for filing the appeal considering the lengthy jail term meted upon the applicant by the trial court and affirmed by the High Court.
4. The principles for exercising the discretion under rule 4 of the Court of Appeal Rules are well settled. An applicant must declare the whole period of delay and sufficiently explain the delay. Similarly, as established in Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, even though there is no definitive maximum or minimum period of delay, a satisfactory explanation will unlock the doors shut by lapse of time.
5. The High Court having rendered its verdict on 24th April 2023, the delay herein is for a period of 1 year and 8 months. The fact that the applicant was in custody ought to count for something while considering the reasonableness of the delay. The applicant explains that he was not supplied with the proceedings in time to file the appeal. In my view, the delay being of 1 year and 8 months, I find it not inordinate considering the explanation given by the applicant. The application is for allowing, which I hereby do.
6. Consequently, the notice of motion is hereby allowed. The applicant’s notice of appeal, dated 10th December 2024, lodged together with this application, is deemed as properly filed. All actions consequent to the filing of a notice of appeal shall be in accordance with the Court of Appeal Rules, 2022.
DATED AND DELIVERED AT NAKURU THIS 9TH DAY OF MAY 2025. W. KORIR..............................JUDGE OF APPEALI certify that this is a True copy of the originalDeputy Registrar