[2024] KECA 1797 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely, that he was not supplied with the judgment in time. The respondent conceded this fact and did not oppose the application. The court considered the length of the sentence, the grounds of appeal, the...
Source-derived case information.
- Citation
- [2024] KECA 1797 (KLR)
- Parties
- Applicant: John Kuria Gacheru; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E158 of 2024
- Procedural Posture
- Criminal Application / Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to appeal out of time granted.
- Judges
- PM Gachoka
- Legal Topics
- Leave to Appeal Out of Time, Conviction and Sentence, Appellate Jurisdiction, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kuria Gacheru
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against conviction and sentence.
- 2 Whether the delay in filing the appeal was justified by the applicant not being supplied with the judgment in time.
- 3 Whether granting the extension would cause undue prejudice to the respondent.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely, that he was not supplied with the judgment in time. The respondent conceded this fact and did not oppose the application. The court considered the length of the sentence, the grounds of appeal, the time lapsed, and the absence of undue prejudice to the respondent. Applying the principles from Rule 4 of the Court of Appeal Rules and the Wasike vs. Swala precedent, the court exercised its discretion to grant the applicant leave to appeal out of time, finding that the threshold for extension of time had been met.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- The applicant shall file his notice of appeal within 14 days from the date of the ruling.
- The record of appeal shall be filed within 30 days thereafter.
Full Case Text
Judgment text and source record
21 paragraphs
Gacheru v Republic (Criminal Application E158 of 2024) [2024] KECA 1797 (KLR) (6 December 2024) (Ruling)
Neutral citation: [2024] KECA 1797 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E158 of 2024
PM Gachoka, JA
December 6, 2024
Between
John Kuria Gacheru
Applicant
and
Republic
Respondent
(An application for leave to appeal out of time against the conviction and sentence from the judgment of the High Court of Kenya at Naivasha (Nzioka, J.) delivered on 27th January 2023 in HCCRA No. 28 of 2019)
Ruling
1. In his undated Notice of Motion, the applicant seeks leave of this Court to appeal out of time against the conviction and sentence of the High Court at Naivasha in HCCRA No. 28 of 2019. The applicant was charged with the offence of attempted murder contrary to section 202 of the Penal Code in Naivasha CMCCRC no. 169 of 2016. After a full trial, the court found that the applicant had committed the offence he was charged with. He was convicted and sentenced to 20 years’ imprisonment. His first appeal against that conviction and sentence were upheld by the High Court (Nzioka, J.) in its judgment dated 27th January 2023.
2. The applicant is dissatisfied with those findings. He however failed to lodge his appeal in good time hence the present application. It is supported by the applicant’s supporting affidavit, his memorandum of appeal and notice of appeal. The main ground set out by the applicant is that he was not supplied with the judgment in good time to enable him invoke this Court’s jurisdiction.
3. The state filed its written submissions dated 14th November 2024. Senior Assistant Director of Public Prosecutions Mr. Omutelema urged this Court to allow the application since the sentence meted out was lengthy.
4. The discretion set out in rule 4 of the Court of Appeal Rules 2022 is wide and unfettered. This Court in Wasike vs. Swala [1984] KLR 591 stated:“As Rule 4 now provides that the Court may extend the time or such terms as it thinks just, an applicant must now show, in descending scale of importance, the following factors:a.That there is merit in his appeal.b.That the extension of time to institute and/or file the appeal will not cause undue prejudice to the respondent; andc.That the delay has not been inordinate.”
5. I have considered the reason advanced by the applicant, the respondent’s concession to the application, the applicant’s grounds in support of the appeal, the time that has lapsed and the law. The prosecution has conceded that the applicant, who is serving sentence in prison, was not supplied with the judgement. I find that the application has met the threshold donated by this Court in exercise of its jurisdiction. Consequently, I direct the applicant to file his notice of appeal within 14 days from today’s date. Thereafter, the record of appeal shall be filed within 30 days.
DATED AND DELIVERED AT NAKURU THIS 6TH DAY OF DECEMBER 2024. M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR