[2020] KEHC 5734 (KLR)
The court found that although there was no evidence the applicant lodged the appeal within time, the applicant was unrepresented, incarcerated, and claimed to have attempted to appeal but received no response from the registry. The court considered the circumstances, including the nature of the offence, the sentence...
Source-derived case information.
- Citation
- [2020] KEHC 5734 (KLR)
- Parties
- Applicant: Joseph Gitau Ndungu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 18 of 2017
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to appeal out of time granted.
- Judges
- CM Kariuki
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Narcotic Offences, Sentencing, Unrepresented Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Gitau Ndungu
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 provided sufficient reasons for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for filing the appeal.
Ratio Decidendi
The court found that although there was no evidence the applicant lodged the appeal within time, the applicant was unrepresented, incarcerated, and claimed to have attempted to appeal but received no response from the registry. The court considered the circumstances, including the nature of the offence, the sentence imposed, and the applicant's lack of representation. The court exercised its discretion in favor of the applicant, finding merit in the application and granting leave to appeal out of time.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- The petition shall be lodged and served within 21 days.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CRIMINAL MISC. APPLICATION NO. 18 OF 2017
JOSEPH GITAU NDUNGU........................................................APPLICANT
VERSUS
REPUBLIC..............................................................................RESPONDENT
RULING
1. The applicant was charged with being in possession of cannabis sativa contrary to section 3(1) 2(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No. 4 of 1994.
2. He pleaded guilty and was fined Kshs.1 million in default to serve 20 years’ imprisonment on 19/9/2014. He was informed his rights of appeal.
3. He lodged his documents seeking leave to appeal out of time in August 2017. It was 3 years late in lodging the application. He claims to have lodged appeal within time but High Court Registry never responded.
4. The State opposes the application as the reasons adduced are not sufficient to warrant court exercise discretion in extension of time of filing appeal out of time.
5. Section 349 of the Criminal Procedure Code states the appeal to be filed within 14 days from the date of order or sentence to be challenged save where the supply of record of appeal is delayed.
6. There is no evidence applicant lodged appeal as alleged within time in the High Court Registry. He does not even state the date he purportedly lodged the appeal.
7. It is trite law each case ought to be considered according to its merits; and it is a well settled principle that the decision on whether or not to extend time for appealing is discretionary; the law also requires that the court must be satisfied that the failure or delay be attributed to inability by either the appellant or his advocate in obtaining the proceedings or judgment within reasonable time of applying; it is noted that the appellant was acting in person and was also incarcerated and therefore may not have been able to obtain the requisite documents to enable him to move forward;
8. He claims to have lodged appeal within time but High Court Registry never responded. The same allegation has not been rebutted.
9. The court takes circumstances of the applicant case, the nature of offence, sentence meted out and the fact that he was un-represented.
10. The court finds merit in the application and allows the same. Thus, the court makes the following orders;
(i) The petition shall be lodged and served within 21 days.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 27TH DAY OF MAY, 2020.
.......................
C. KARIUKI
JUDGE