[2015] KEHC 6490 (KLR)
The court found that the applicant had provided sufficient explanation for the delay in filing the appeal, namely financial constraints and delay in obtaining the judgment. The court emphasized that the Constitution guarantees the right of appeal and that denying leave in these circumstances would be...
Source-derived case information.
- Citation
- [2015] KEHC 6490 (KLR)
- Parties
- Appellant: Joseph Mutuku Mutisya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 136 of 2013
- 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
- LN Mutende
- Legal Topics
- Leave to Appeal Out of Time, Right of Appeal, Constitutional Rights of Convicts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mutuku Mutisya
Appellant
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 cause for leave to appeal out of time.
- 2 Whether denying leave would violate the applicant's constitutional right of appeal.
Ratio Decidendi
The court found that the applicant had provided sufficient explanation for the delay in filing the appeal, namely financial constraints and delay in obtaining the judgment. The court emphasized that the Constitution guarantees the right of appeal and that denying leave in these circumstances would be unconstitutional. Therefore, the applicant was granted leave to appeal out of time.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- The applicant is granted leave to appeal out of time as prayed within 14 days.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL MISCELLANEOUS CASE NO.136 OF 2013
JOSEPH MUTUKU MUTISYA…………...APPELLANT
VERSUS
REPUBLIC……………………………….RESPONDENT
RULING
By way of Notice of Motion filed on the 12th August, 2012 Joseph Mutuku Mutisya seeks leave to appeal out of time.
The application is supported by an affidavit deponed by the Applicant where he deposes that his relatives had promised to retain a lawyer to represent him but due to financial constraints they were unable. He was of the view that his appeal has a high chance of succeeding.
In support of the application was an attachment- grounds of the intended appeal where he states inter-alia that the learned Appellate Judges erred in law by failure to discharge their duty of evaluating of evidence adduced and failing to find that the case was not proved to the required standard.
At the hearing the applicant added that he was not able to make the application on time because there was a delay in being supplied with the copy of the judgment.
In a response thereto, learned State Counsel, Mr. Mwangi opposed the application. He argued that no point of law had been raised by the applicant; the High Court, a court of record had evaluated evidence and upheld the conviction of the Lower Court. Further, he submitted that although an appeal being heard by a Court of Appeal is a constitutional right, this particular case had no chance of succeeding
A person aggrieved by a decision of the court has a right of appeal. Where the appeal is not made within stipulated time, leave to appeal can be granted following a good cause. Today, the constitution of Kenya gives convicts the right to appeal or even apply for review to a High Court Vide Article 50(2) (9) of the Constitution.
In the premises it will be unconstitutional to bar the applicant from appealing to the Higher Court when circumstances that made him not appeal within the stipulated time were not favourable to him.
Consequently, I grant him leave to appeal out of time as prayed within 14 days.
It is so ordered.
DATED, SIGNED and DELIVEREDatMACHAKOS this 28TH day of JANUARY, 2015.
L.N. MUTENDE
JUDGE