[2019] KEHC 11337 (KLR)
The court found that the applicant had provided a satisfactory explanation for the delay in filing his appeal, namely, that he was waiting for his relatives to secure legal representation, which did not materialize in time. Consequently, the court exercised its discretion to grant leave to file the appeal out of...
Source-derived case information.
- Citation
- [2019] KEHC 11337 (KLR)
- Parties
- Applicant: Elijah Murimi Mithamo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 214 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- Application for extension of time to file appeal out of time granted; application for review or mitigation of sentence declined.
- Judges
- LK Kimaru
- Legal Topics
- Extension of Time, Appeal Out of Time, Mitigation of Sentence, Attempted Suicide, Attempted Murder
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elijah Murimi Mithamo
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for extension of time to file an appeal out of time.
- 2 Whether the court can consider mitigation of sentence in an application for extension of time to appeal.
Ratio Decidendi
The court found that the applicant had provided a satisfactory explanation for the delay in filing his appeal, namely, that he was waiting for his relatives to secure legal representation, which did not materialize in time. Consequently, the court exercised its discretion to grant leave to file the appeal out of time. However, the court held that submissions on mitigation of sentence were prematurely made, as there was no proper application before the court for review or mitigation of sentence. The court set aside the proceedings relating to mitigation and directed that any application for review or mitigation of sentence must be made in the appropriate manner and proceedings.
Court Disposition
Application for extension of time to file appeal out of time granted; application for review or mitigation of sentence declined.
Orders
- Leave is granted to the applicant to file and serve the petition of appeal within seven (7) days.
- Proceedings relating to mitigation of sentence in this application are set aside.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO.214 OF 2018
ELIJAH MURIMI MITHAMO....................................APPLICANT
VERSUS
REPUBLIC..................................................................RESPONDENT
RULING
The Applicant, Elijah Murimi Mithamo was charged and convicted of the offence of attempted suicide contrary to Section 226 as read with Section 36 of the Penal Code. The particulars of the offence were that on 3rd December 2014 at Gaitumbi Village, Kinoo in Nairobi County, the Appellant attempted to kill himself by hanging himself on the neck using a sisal rope. He was also charged and convicted of the offence of attempted murder contrary to Section 220 of the Penal Code. The particulars of the offence were that on the same day and in the same place, the Applicant attempted to kill GF, a child aged two years by hanging the said GF using a sisal rope on his neck. In respect of the first count, the Applicant was sentenced to serve one (1) year imprisonment. In respect of the second count, the Appellant was sentenced to serve life imprisonment.
The Applicant filed an application before this court seeking extension of time to file appeal out of time. In the application, the Applicant indicated that he did not file the appeal in time because he was waiting for his relatives to hire a lawyer to act on his behalf. The family did not come through until the period that he ought to have filed the appeal had expired. This court is satisfied with the explanation given by the Applicant for his failure to file the appeal in time. He is therefore granted leave to file an appeal out time. The Applicant should file and serve the petition of appeal within seven (7) days. During the hearing of the application, this court was informed by counsel for the Applicant that the Applicant intended to mitigate his sentence rather than proceed with the appeal challenging his conviction and sentence. Indeed, learned counsel went ahead and mitigated the sentence. When this court retired to write its Ruling, it became apparent that there was no basis upon which this court could have allowed the Applicant to mitigate his sentence yet there was not application on record for the court to give such consideration. The submission made on mitigation of sentence was therefore prematurely made.
In the premises therefore, this court sets aside the said proceedings where the Applicant purports to mitigate his sentence in an application for extension of time to file appeal out of time. The Applicant is at liberty to file an appropriate application for this court’s consideration of his sentence including, if he chooses to, to file an appeal seeking the review of his sentence after the court considers his mitigating circumstances. In conclusion therefore, this court grants the Applicant’s application for extension of time to file an appeal out of time. The court however declines the invitation made by the Applicant for the review of his sentence. This is because the said application was made in the wrong proceedings. Those are the orders the court shall issue in the circumstances. It is so ordered.
DATED AT NAIROBI THIS 8TH DAY OF MAY 2019
L. KIMARU
JUDGE