[2017] KEHC 2160 (KLR)
The court found that although there was no direct evidence of the alleged breakdown in communication between the prison documentation office and the court registry, such occurrences are not uncommon. Given the gravity of the sentence (death penalty) faced by the applicants, the court held that it would be fair and...
Source-derived case information.
- Citation
- [2017] KEHC 2160 (KLR)
- Parties
- Applicant: Fredrick Ntoiti Mutura; Applicant: Stephen Gichunge Kimathi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 41 & 42 of 2017
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- applications allowed
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Death Penalty Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Ntoiti Mutura
Applicant
Stephen Gichunge Kimathi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicants have shown good cause for delay in filing their appeals out of time.
- 2 Whether leave to appeal out of time should be granted in the circumstances.
Ratio Decidendi
The court found that although there was no direct evidence of the alleged breakdown in communication between the prison documentation office and the court registry, such occurrences are not uncommon. Given the gravity of the sentence (death penalty) faced by the applicants, the court held that it would be fair and just to grant them an opportunity to contest their conviction and sentence. The delay, being just under two years, was excused in the interests of justice, and leave to appeal out of time was granted.
Court Disposition
applications allowed
Orders
- Each applicant shall file appeal within 14 days of the date of this Ruling.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CRIMINAL APPLICATIONCASE NO. 41 & 42 OF 2017
FREDRICK NTOITI MUTURA .………...………... 1STAPPLICANT
STEPHEN GICHUNGE KIMATHI……….…….… 2ND APPLICANT
Versus
REPUBLIC ………..………..……….…………… RESPONDENT
RULING
1. I have before me two application by way of Notice of Motion dated 7th September, 2017 by Nicholas Gituma Kimathi and Stephen Gichunge Kimathi. Both applications are seeking leave to file appeal to the Court of Appeal out of time. Each 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 two days shy of 2 years as the judgment being appealed against was delivered on 13th October 2015. The Appellants argue that they filed their appeals in time except there was a problem between the prison documentation office and the court registry. There is no evidence of the alleged problem between the prison office and the registry. However, in the course of things, it is not strange that there could be breakdown of communication between the prison office and the court registry. Again, these two persons are faced with death penalty and it is only fair that they are given an opportunity to contest their conviction and sentence.In the circumstances, I allow the two applications. Each applicant shall file appeal within 14 days of the date of this Ruling.
DATED and DELIVERED at MERU this 10th day of October, 2017.
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F. GIKONYO
JUDGE