[2018] KEHC 6247 (KLR)
The court found that although the delay of 2 years and 5 months in filing the notice of appeal was substantial, it was excusable because it was caused by administrative errors between the prison documentation office and the court registry, not by the applicant herself. The applicant had attempted to lodge her appeal...
Source-derived case information.
- Citation
- [2018] KEHC 6247 (KLR)
- Parties
- Applicant: Consolata Nkomo Murungi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 13 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Leave to Appeal, Criminal Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Consolata Nkomo Murungi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against her conviction for murder.
- 2 Whether the delay in filing the notice of appeal was excusable under the circumstances.
Ratio Decidendi
The court found that although the delay of 2 years and 5 months in filing the notice of appeal was substantial, it was excusable because it was caused by administrative errors between the prison documentation office and the court registry, not by the applicant herself. The applicant had attempted to lodge her appeal within the stipulated time, and it would be unjust to deny her the right to appeal due to the fault of others. The court also considered the applicant's status as a lay person who may not have been aware of the procedural requirements. Consequently, the court exercised its discretion to allow the application and deemed the notice of appeal as having been filed within time.
Court Disposition
application allowed
Orders
- The Notice of Appeal dated 31st May, 2018 is deemed to have been filed within time.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CR. APPLN NO.13 OF 2018
CONSOLATA NKOMO MURUNGI.....APPLICANT
VERSUS
REPUBLIC...........................................RESPONDENT
RULING
1. CONSOLATA NKOMO MURUNGI (“the applicant)has by her Motion on Notice dated 31st May, 2018, applied for leave to appeal out of time to the Court of Appeal against the decision of this court(R.V.P WENDOH) convicting her on the charge of murder made on 30th October, 2015.
2. The grounds upon which the application is made are set out in the Motion and her supporting affidavit sworn on 25th May, 2018. These are that; after she was convicted and sentenced she had lodged an appeal within 14 days as stipulated by law but there was a filing problem between documentation office in prison and court registry and that her appeal has overwhelming chances of succeeding. The applicant therefore prays that her application be allowed.
3. I have considered the affidavit on record. The jurisdiction of this court to entertain this application is derived from section 7 of the Appellate Jurisdiction Act, Cap 9 of the laws of Kenya, which provides that:-
“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired.
…”
4. The judgment sought to be appealed against was delivered on 30th October, 2015. The present application was lodged on 31st May, 2018. The time for lodging an appeal is 14 days from the date of decision sought to be appealed against. Therefore, the time for filing the notice expired on 13th November, 2015. The applicant however stated in her Motion that she had lodged an appeal within 14 days as stipulated by the law but there was a problem between documentation office in prison and court the registry. This caused the delay to be of 2years 5months.
5. To my mind a delay of 2 years and 5months seems unreasonable but in the circumstances it is excusable having in mind that it was caused by the documentation office and court registry and not the applicant. Further, the applicant had already lodged an appeal within the stipulated time and it would be unfair to deny her the right to appeal due to the fault of others. However the applicant could not have waited for such a long time to make this application. I will excuse the applicant for wasting time to file this application since she is a lay person and may not have been aware of that fact.
6. In the premises, I am satisfied that the application has merit and I allow the same. The Notice of Appeal dated 31st May, 2018 is hereby deemed to have been filed within time.
DATED and DELIVERED at Meru this 18th day of June, 2018
A.MABEYA
JUDGE