[2018] KEHC 8572 (KLR)
The court found that the applicant had provided a credible and plausible explanation for the delay in filing the appeal, namely a breakdown in communication between the Prisons Documentation Office and the Court registry. The court considered the seriousness of the sentence (death penalty) and the relatively short...
Source-derived case information.
- Citation
- [2018] KEHC 8572 (KLR)
- Parties
- Applicant: David Mawira Kinoti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 49 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Judges
- A Mabeya
- Legal Topics
- Leave to Appeal Out of Time, Murder Conviction, Sentence Appeal, Procedural Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mawira Kinoti
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether leave to appeal out of time should be granted in light of the circumstances.
Ratio Decidendi
The court found that the applicant had provided a credible and plausible explanation for the delay in filing the appeal, namely a breakdown in communication between the Prisons Documentation Office and the Court registry. The court considered the seriousness of the sentence (death penalty) and the relatively short period served so far, and determined that it was just and fair to grant the applicant an opportunity to appeal. Accordingly, leave to appeal out of time was granted, and the applicant was directed to file the Notice of Appeal within 14 days.
Court Disposition
leave to appeal out of time granted
Orders
- Leave to appeal out of time is granted.
- The Notice of Appeal shall be filed within 14 days of the date hereof.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CRIMINAL APPLICATION CASENO. 49 OF 2017
DAVID MAWIRA KINOTI.........................APPLICANT
-VERSUS-
REPUBLIC……….………................…..RESPONDENT
RULING
1. DAVID MAWIRA KINOTIhas applied for leave to appeal out of time.He is aggrieved against the judgment of this Court (Hon. Wendoh J.) made on 28th July, 2015 whereby he was convicted of the offence of murder contrary to section 203 as read with section 204 of the Penal Code and sentenced to suffer death.
2. The time for appealing expired on 11th August, 2015. The present application was lodged on 17th November, 2017. There is therefore a delay of two (2) years and four (4) months.That is in all circumstances, inordinate.
3. The reasons advanced for the delay is that although he preferred the appeal within the stipulated time of 14 days, there occurred a filing problem between the PrisonsDocumentation Office and this Court’s registry whereby he was unable be allocated an appeal number.The applicant has contended that the intended appeal has overwhelming chances of success.
4. Having considered the case in its entirety, I find the reasons advanced for the delay to be credible.It is not farfetched that, in the normal course of events, there can be breakdown of communication between this Court’s registry and the Prisons Department wherein the applicant is being held and a period of less than three years to take action is considerable.To my mind, that is a plausible explanation.
5. Further, and what weighed heavily on my decision, considering the long sentence which the applicant is serving and that he has only spent three years from the possible death sentence metted out on him, it is just and fair to grant the Applicant an opportunity to ventilate his case before a higher Court for consideration.
6. Accordingly, leave is granted as prayed.The Notice of Appeal be filed within 14 days of the date hereof.
DATEDand DELIVERED at MERU this 24th day of January, 2018.
A. MABEYA
JUDGE