[2014] KEHC 7104 (KLR)
The court found that the applicant's failure to file the appeal within the prescribed period was not due to inadvertence on his part but was occasioned by ignorance of the law and illness. Given that the draft memorandum of appeal raised considerable issues for determination, and in the interest of justice, the...
Source-derived case information.
- Citation
- [2014] KEHC 7104 (KLR)
- Parties
- Applicant: Francis Ngei Mwikali; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 227 of 2013
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to appeal out of time granted.
- Judges
- LN Mutende
- Legal Topics
- Leave to Appeal Out of Time, Conviction Appeal, Procedural Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ngei Mwikali
Applicant
Republic
Respondent
Procedural Posture
Criminal 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 after conviction for attempted rape.
- 2 Whether the delay in filing the appeal was justified.
Ratio Decidendi
The court found that the applicant's failure to file the appeal within the prescribed period was not due to inadvertence on his part but was occasioned by ignorance of the law and illness. Given that the draft memorandum of appeal raised considerable issues for determination, and in the interest of justice, the applicant should be afforded an opportunity to be heard on appeal. The court exercised its discretion to grant leave to appeal out of time.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- The applicant is granted leave to appeal out of time within 14 days.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISC NO. 227 OF 2013
FRANCIS NGEI MWIKALI …………………………….....ACCUSED
VERSUS
REPUBLIC…………………………........................PROSECUTOR
RULING
By an Application dated 20th December, 2013 the Applicant seeks leave to appeal out of time. The application is premised on grounds that having been convicted for the offence of attempted rape and sentenced to 10 years imprisonment in Criminal Case No. 147 of 2011, the applicant was ignorant of the consequences of not lodging the appeal within the required 14 days.
Further, he states that he was not aware that he could not file the application seeking leave to appeal out of time. He also fell sick therefore could not act accordingly.
The application is not opposed by the State.
I have perused a copy of the draft memorandum of appeal which raises considerable issues that should be canvassed on appeal.
The applicant was convicted in March, 2012. Two (2) years have lapsed since he was sentenced. However considering the fact that failure to file the appeal as required was not occasioned by some inadvertence on his part, in the interest of justice he ought to be given the opportunity of being heard.
In the premises I grant him leave to appeal out of time within 14 days.
It is so ordered.
DATED, SIGNED, andDELIVERED at MACHAKOSthis 11THday of FEBRUARY 2014.
L.N. MUTENDE
JUDGE