[2016] KEHC 86 (KLR)
The court found that the applicant had demonstrated sufficient grounds for failing to file the appeal within the prescribed fourteen days, specifically due to his inability to raise legal fees and secure counsel in time. The court held that the omission should not be visited upon the applicant and, in the interest...
Source-derived case information.
- Citation
- [2016] KEHC 86 (KLR)
- Parties
- Applicant: John Gitau Njoroge; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 10 of 2016
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- DB Nyakundi
- Legal Topics
- Leave to Appeal Out of Time, Defilement Offence, Sentencing Appeal, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gitau Njoroge
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient grounds to warrant leave to appeal out of time.
- 2 Whether the failure to file the appeal within the prescribed period should be excused in the interest of justice.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for failing to file the appeal within the prescribed fourteen days, specifically due to his inability to raise legal fees and secure counsel in time. The court held that the omission should not be visited upon the applicant and, in the interest of justice, exercised its discretion to grant leave to appeal out of time. The court emphasized the applicant's constitutional right of appeal and the need to avoid denying substantive justice on the basis of procedural technicalities.
Court Disposition
application allowed
Orders
- The petition and memorandum of appeal on record are deemed as properly filed within time.
- The deputy registrar is to cause the lower court record to be typed and served upon the applicant within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAJIADO
CRIMINAL MISC. APPLICATION NO. 10 OF 2016
JOHN GITAU NJOROGE…………………...…….…APPLICANT
Versus
REPUBLIC…………………………………...........RESPONDENT
RULING
The applicant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2016. He denied the charge. The prosecution called witnessed at the trial. At the close of the prosecution and defence case, the trial magistrate convicted and sentenced the applicant to life imprisonment. The appeal at the time was received in the high court registry the 14 days period had lapsed. The application filed a further application together with supporting affidavit seeking leave to appeal out of time.
The applicant depones interalia that upon conviction he sought services of an advocate to file an appeal on his behalf but failed to raise the required legal fees. It was in the course of seeking services of counsel that the fourteen days lapsed. The applicant further contends that inspite he was not able to retain an advocate he is willing and ready to pursue his appeal as per the draft memorandum of appeal.
I have considered the application and affidavit in support upon which the application is premised pursuant to section 349 of the Criminal Procedure Code. I am persuaded that the applicant has demonstrated sufficient grounds which occasioned him not to file the appeal within the prescribed fourteen days. The applicant has a right of appeal to the high court to challenge the conviction and sentence of the trial court in Criminal Case No. 1221 of 2014 holden at Kajiado Chief Magistrate’s Court.
I am of the holding that the omission by the applicant of not meeting the deadline of 14 days should not be visited on him. I therefore exercise discretion for the interest of justice in favour of the applicant under Article 159 of the Constitution. The applicant has intimated that he has an arguable appeal.
In the circumstances I grant the prayers sought in the chamber summons dated 13/6/2016 in the following terms:
(1) The petition and memorandum of appeal on record be deemed as properly filed within time.
(2) The deputy registrar to cause the lower court record be typed and served upon the applicant within 30 days from today’s date.
(3) Further mention on 7/9/2016 before the deputy registrar to confirm compliance and issue further directions on the matter.
Dated, delivered and signed in open court at Kajiado on 21/7/2016
….…………….
R. NYAKUNDI
JUDGE
Representation:
Applicant present
Mr. Akula for the Director of Public Prosecutions
Mr. Mutisya Court Assistant present