[2018] KEHC 7424 (KLR)
The court found that the applicant's delay of 10 days in filing the notice of appeal was not unreasonable, particularly given his status as a lay person in custody who may not have been aware that he did not need to wait for proceedings and judgment to file the notice. The court exercised its discretion under...
Source-derived case information.
- Citation
- [2018] KEHC 7424 (KLR)
- Parties
- Applicant: Jackson Kaberia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 8 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- A Mabeya
- Legal Topics
- Extension of Time, Leave to Appeal, Criminal Appeals, Procedural Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jackson Kaberia
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 the delay in filing the notice of appeal out of time.
- 2 Whether the High Court has jurisdiction to extend time for filing a notice of appeal under section 7 of the Appellate Jurisdiction Act.
Ratio Decidendi
The court found that the applicant's delay of 10 days in filing the notice of appeal was not unreasonable, particularly given his status as a lay person in custody who may not have been aware that he did not need to wait for proceedings and judgment to file the notice. The court exercised its discretion under section 7 of the Appellate Jurisdiction Act to excuse the delay and allow the application, deeming the notice of appeal as filed within time.
Court Disposition
application allowed
Orders
- The application for extension of time is allowed.
- The Notice of Appeal dated 16th March, 2018 is deemed to have been filed within time.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CR. APPLN NO. 8 OF 2018
JACKSON KABERIA.....................................................APPLICANT
VERSUS
REPUBLIC...................................................................RESPONDENT
R U L I N G
1. JACKSON KABERIA (“the applicant”)has, by his Motion on Notice dated 16th March, 2018, applied for leave to appeal out of time to the Court of Appeal against the decision of this court (Gikonyo J.) made on 20th February, 2018 dismissing his appeal against his conviction and sentence to suffer death for robbery with violence.
2. The grounds upon which the application is made are set out of the Motion and his supporting affidavit sworn on 16th March, 2018. These are that; his appeal to this court from the Tigania SRM court was dismissed on 20th February, 2018; that he was unable to get the proceedings and judgment to enable him prepare and lodge his appeal in time as required by law and that his appeal has overwhelming chances of succeeding. The applicant therefore prays that his application be allowed.
3. I have considered the affidavit on record. The jurisdiction of this court to entertain this application is derived from section 7 of the Appellate Jurisdiction Act, Cap 9 of the Laws of Kenya,which provides that:-
“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired.
…”
4. The judgment sought to be appealed against was delivered on 20th February, 2018. The present application was lodged on 16th March, 2018. The time for lodging the notice of appeal is 14 days from the date of the decision sought to be appealed against. Therefore, the time for filing the notice expired on 6th March, 2018. There was a delay of 10 days only.
5. To my mind, a delay of 10 days is not unreasonable. It is excusable having in mind that the applicant was in custody. Further, although the lodging of a notice of appeal in the Court of Appeal does not require the applicant to have had the proceedings and the judgment sought to be appealed against, I will excuse the applicant for wasting time to wait for them as that was unnecessary since he is a lay man and may not have been aware of that fact.
6. In the premises, I am satisfied that the application has merit and I allow the same. The Notice of Appeal dated 16th March, 2018 is hereby deemed to have been filed within time.
DATED and DELIVERED at Meru this 16th day of April, 2018.
A . MABEYA
JUDGE