[2006] KEHC 968 (KLR)
The court found that the applicant's affidavit was not fatally defective, and even if the challenged paragraphs were struck out, the application would not be adversely affected. The court was satisfied that the proceedings of the court martial were completed on 19th January 2006, and that the delay in filing the...
Source-derived case information.
- Citation
- [2006] KEHC 968 (KLR)
- Parties
- Applicant: Gilbert Otieno Owiti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 470 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- CJ Kendagor
- Legal Topics
- Leave to Appeal Out of Time, Court Martial Proceedings, Affidavit Defects, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilbert Otieno Owiti
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for delay in filing the appeal out of time.
- 2 Whether the supporting affidavit is defective and if such defect is fatal to the application.
- 3 Whether the applicant's right to appeal should be denied due to alleged delay.
Ratio Decidendi
The court found that the applicant's affidavit was not fatally defective, and even if the challenged paragraphs were struck out, the application would not be adversely affected. The court was satisfied that the proceedings of the court martial were completed on 19th January 2006, and that the delay in filing the appeal was not inordinate as alleged by the respondent. The court further held that the applicant's right to appeal should not be denied on the basis of a technicality or minor delay, especially where the delay was reasonably explained. Accordingly, the court exercised its discretion to allow the application and granted the applicant leave to file the appeal out of time.
Court Disposition
application allowed
Orders
- Applicant granted leave to lodge appeal within 28 days from the date of the ruling.
- Applicant to serve the respondent within 7 days from the date of filing the appeal.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc Crim Appli 470 of 2006
(Intended appeal from conviction and sentence of the court martial Lang’ata Barracks
Nairobi –court martial case No. 05 of 2005
GILBERT OTIENO OWITI….....…........................................…………………………..APPLICANT
VERSUS
REPUBLIC ……………...................................……………………………….…....RESPONDENT
R U L I N G
The Application before court was for leave to file appeal out of time. The Applicant stated that the reason for delay in filing the appeal was the delay in obtaining the proceedings of the Court Martial and in going through the voluminous record in order to prepare grounds of appeal. Counsel for the Applicant submitted that the Court Martial had ended in January 2005 and that the proceedings were only ready in July 2005.
The application was opposed. Mr. Kirihia for the State submitted that the Affidavit supporting the Application was defective in that the source of information or basis of belief in paragraph 5, 6, 8 and 9 are not given. Counsel submitted that there was inordinate delay, which was unexplained since the paragraphs of the affidavit explaining the delay were defective.
In brief response Mr. Sumba for the Applicant submitted that paragraph 5 of the affidavit has an annexure which supported the averment. That paragraph 6 merely makes a statement that the proceedings were 367 pages, which is a fact. That paragraph 8 of the Application merely states that he was not the cause of the delay but that his advocate in Court Martial was, which is a fact evidenced in the proceedings.
I have considered the Application. I do not find that the affidavit in support of this Application is defective. In any event, the paragraphs challenged, even if they were to be struck off, would not adversely affect the Application.
My greatest concern was whether the record was complete with the summing up by the Judge - Advocate. Counsel for the Applicant was not helpful. However, I have confirmed from the bundle of proceedings that the summing up is part of it.
I have also satisfied myself that the proceedings of the Court Martial were completed on 19th January 2006. The proceedings were thereafter prepared for the appeal. I do not find delay in filing the appeal inordinate. The Applicant’s advocate was not clear of the date the matter was ended and erroneously stated it was in January 2005. So as Counsel for State alleged there is not a one year lapse between completion of the trial and filing of the appeal. The lapse of time is far less.
Even if there was such a delay, I find that the Applicant’s right to an appeal should not be muzzled on such a flimsy ground. I will allow the prayer sought in this application. Applicant granted leave to lodge their appeal within 28 days from the date herein and to serve the Respondent within 7 days from the date of filing.
Dated at Nairobi this 3rd day of November 2006.
LESIIT, J.
JUDGE
Ruling read in the presence of:
Applicant
Mr. Kirihia for State
Mr. Sumba for the Applicant
CC: Tabitha
LESIIT, J.
JUDGE