[2017] KEHC 2326 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay of six years in seeking leave to appeal out of time. Reliance on relatives to hire an advocate and subsequent inaction did not constitute good cause. The applicant's desire to file as a pauper did not override...
Source-derived case information.
- Citation
- [2017] KEHC 2326 (KLR)
- Parties
- Applicant: David Tumbo M'Munoru; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 43 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- F Gikonyo
- Legal Topics
- Leave to Appeal Out of Time, Pauper Appeal, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Tumbo M'Munoru
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has shown good cause for delay in filing the appeal out of time.
- 2 Whether the applicant qualifies to file the appeal as a pauper.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay of six years in seeking leave to appeal out of time. Reliance on relatives to hire an advocate and subsequent inaction did not constitute good cause. The applicant's desire to file as a pauper did not override the requirement to act diligently. Consequently, the legal threshold for granting leave to appeal out of time was not met, and the application was dismissed.
Court Disposition
application dismissed
Orders
- The application for leave to file appeal out of time and as a pauper is dismissed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CRIMINAL APPLICATION CASE NO. 43 OF 2017
DAVID TUMBO M’MUNORU……….APPLICANT
VERSUS
REPUBLIC …………………….… RESPONDENT
RULING
1. I have before me undated application by way of Notice of Motion filed on 12th September 2017. The application is seeking leave to file appeal to the Court of Appeal out of time and as a pauper. The application is supported by the affidavit of the Applicant. In such applications the applicant must show good cause why he did not enter the appeal in time; and such factors as his inability to obtain copy of the judgment or order appealed against, and copy of record of the trial is of paramount importance.
2. Applying the above test, the delay herein is for 6 years. The Applicant’s explanations for the delay is that; upon dismissal of his appeal on 8th October 2011, he was promised by his relatives that they will hire a lawyer for him to file the appeal but none was hired as they could not raise the advocates’ fee. A period of six years is inordinate and should be explained properly if the court should exercise its discretion in favour of the Applicant. Whereas the Applicant is entitled to legal counsel, he has not explained why he went to slumber for six years and did not move the court at earliest possible time or in good time. The fact that he wants to file appeal as a pauper does not hold sway. I am not convinced that this application fits the legal test and I dismiss it albeit with a lot of trepidation.
DATED and DELIVERED at MERU this 10th day of October, 2017.
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F. GIKONYO
JUDGE