[2018] KEHC 8600 (KLR)
The court found that the applicant provided a credible and plausible explanation for the delay in filing the appeal, namely, reliance on relatives to appoint an advocate which did not materialize. The application was made within two years of the judgment, and given the long sentence imposed and the fact that the...
Source-derived case information.
- Citation
- [2018] KEHC 8600 (KLR)
- Parties
- Applicant: Isaiah Mwenda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 48 of 2017
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Judges
- A Mabeya
- Legal Topics
- Leave to Appeal Out of Time, Defilement Offence, Sentencing, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaiah Mwenda
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether leave to appeal out of time should be granted in light of the circumstances.
Ratio Decidendi
The court found that the applicant provided a credible and plausible explanation for the delay in filing the appeal, namely, reliance on relatives to appoint an advocate which did not materialize. The application was made within two years of the judgment, and given the long sentence imposed and the fact that the applicant had only served three years out of twenty, it was just and fair to grant him an opportunity to appeal. The interests of justice favored granting leave to appeal out of time.
Court Disposition
leave to appeal out of time granted
Orders
- Leave to appeal out of time is granted.
- The Notice of Appeal shall be filed within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CRIMINAL APPLICATION CASE NO. 48 OF 2017
ISAIAH MWENDA .…………………………………………..APPLICANT
VERSUS
REPUBLIC ……………………….…………….………… RESPONDENT
RULING
1. ISAIAH MWENDAhas applied for leave to appeal out of time. He is aggrieved against the judgment of this Court (Hon. Wendoh J.) made on 14th November, 2014 upholding the judgment of the Chief Magistrate’s Court, Meru wherein he had been convicted with the offence of defilement contrary to Section 8 (2) of the Sexual Offenses Actand sentenced to 20 years imprisonment.
2. The time for appealing expired on 29th November, 2014. The application was lodged on 11th August, 2016. There was therefore a delay of one (1) year and nine (9) months. That is in all circumstances, inordinate.
3. The reasons advanced for the delay is that the applicant’s relatives had promised to appoint an Advocate who was to lodge the Appeal. That the applicant waited but realized that none had been appointed. That as a result he was unable to lodge the appeal within time. The applicant has contended that the intended appeal has overwhelming chances of success.
4. Having considered the case in its entirety, I find the reasons advanced for the delay to be credible. He made the application within two years of the judgment. To my mind, that is a plausible explanation.
5. Further, and what weighed heavily on my decision, considering the long sentence which the Applicant is serving and that he has only spent three years out of the twenty he is serving, it is just and fair to grant him an opportunity to ventilate his case before a higher Court for consideration.
6. Accordingly, leave is hereby granted as prayed. The Notice of Appeal be filed within 14 days of the date hereof.
DATED and DELIVERED at MERU this 24th day of January, 2018.
A. MABEYA
JUDGE