[1997] KECA 175 (KLR)
The court found that the applicant failed to provide any explanation for the delay of over eight months between the communication of the superior court's decision and the filing of the present application for extension of time. The applicant was not incarcerated and there were no circumstances presented to justify...
Source-derived case information.
- Citation
- [1997] KECA 175 (KLR)
- Parties
- Applicant: Fredrick Muvandi Kioko; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 2 of 1997
- Procedural Posture
- Criminal Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed
- Judges
- JE Gicheru
- Legal Topics
- Extension of Time, Summary Rejection of Appeal, Criminal Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Muvandi Kioko
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the notice of appeal.
- 2 Whether the court should exercise its discretion under rule 4 of the Court of Appeal Rules to extend time for filing the notice of appeal.
Ratio Decidendi
The court found that the applicant failed to provide any explanation for the delay of over eight months between the communication of the superior court's decision and the filing of the present application for extension of time. The applicant was not incarcerated and there were no circumstances presented to justify the delay. In the absence of a reasonable explanation, the court declined to exercise its discretion under rule 4 of the Court of Appeal Rules to extend the time for filing the notice of appeal. Consequently, the application was dismissed.
Court Disposition
application dismissed
Orders
- The application for extension of time to file the notice of appeal is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Gicheru, J.A. (IN CHAMBERS)
CRIMINAL APPLICATION NO. NAI. 2 OF 1997
BETWEEN
FREDRICK MUVANDI KIOKO..................................APPLICANT
AND
REPUBLIC..............................................RESPONDE NT
(Application for extension of time to file Notice of Appeal in an intended appeal from the judgment of the High Court of Kenya at Machakos (Mwera, J.) dated 9th February, 1996. in H.C.CR. APPEAL NO. 123 OF 1991) ***********************
RULING
In this application, the applicant seeks extension of time to lodge the Notice of Appeal against the decision of the superior court in Machakos H.C. Cr. A. NO. 123 of 1995. That decision was a summary rejection of the applicant's appeal to that court under section 352(2) of the Criminal Procedure Code and was made on 9th February, 1996. According to the applicant, the said decision was communicated to him by means of a letter which reached him on 13th May, 1996. His present application was made on 28th January, 1997 - a period of over eight months since the decision of the superior court was communicated to him. No explanation has been given for this long delay to enable me exercise my discretion under rule 4 of the Rules of this Court in his favour or otherwise.
The applicant, a watchman at Enzai Youth Polytechnic in Makueni district of the Eastern Province had been convicted of stealing by servant contrary to section 281 of the Penal Code on 3rd March, 1995 by Kilungu District Magistrate's Court and was placed on probation for two years on the 21st of the same month. Hence when the decision of the superior court summarily rejecting his appeal against his conviction by the trial court was communicated to him, he was not under incarceration and his unexplained delay in making his present application is inexcusable. Having had a glance at the judgment of the Kilungu District Magistrate's Court, it appears to me that the circumstances of the applicant's application for extension of time within which to lodge the Notice of Appeal as is mentioned at the beginning of this ruling are such that they disincline me from exercising my discretion under rule 4referred to above. In the result, I reject the applicant's application and order that the same be and is hereby dismissed.
Dated and delivred at Nairobi this 26th day of February, 1997.
J.E. GICHERU
.............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR