[2018] KECA 153 (KLR)
The court found that although the applicant's explanation for delay—non-availability of a copy of the judgment—was not a reasonable excuse for failing to file a notice of appeal, the reasons were not controverted by the respondent. Exercising its discretion in the interest of justice, the court allowed the...
Source-derived case information.
- Citation
- [2018] KECA 153 (KLR)
- Parties
- Applicant: Joshua Ochieng Rakwel; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 15 of 2018
- Procedural Posture
- Criminal Application / Application for Extension of Time and Leave to Appeal as Pauper
- Outcome
- application allowed
- Judges
- AM Githinji
- Legal Topics
- Extension of Time, Leave to Appeal as Pauper, Robbery With Violence, Failure to File Notice of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Ochieng Rakwel
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Extension of Time and Leave to Appeal as Pauper
Legal Issues
- 1 Whether the applicant should be granted extension of time to file a notice of appeal.
- 2 Whether the applicant should be granted leave to file an appeal as a pauper.
Ratio Decidendi
The court found that although the applicant's explanation for delay—non-availability of a copy of the judgment—was not a reasonable excuse for failing to file a notice of appeal, the reasons were not controverted by the respondent. Exercising its discretion in the interest of justice, the court allowed the application for extension of time and granted leave to file the notice of appeal as a pauper within 14 days.
Court Disposition
application allowed
Orders
- The applicant is allowed to file the notice of appeal as a pauper within 14 days from the date hereof.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E. M. GITHINJI, JA. (IN CHAMBERS)
CRIMINAL APPLICATION NO 15 OF 2018
BETWEEN
JOSHUA OCHIENG RAKWEL................................................APPLICANT
AND
REPUBLIC..............................................................................RESPONDENT
(Being an Application from the Judgment of the High Court of Kenya at Kakamega arising from the Original Criminal Case No. 822 of 2008 atSRM’s Butere Law Courts
in
KAKAMEGA H.C.CR.A. NO. 82 OF 2010)
**********************************
RULING
The applicant applies for extension of time within which to file an appeal and for leave to file an appeal as a pauper. The application is supported by the applicant’s affidavit sworn in support of the application. He states that he was convicted for the offence of robbery with violence contrary to Section 296(2) of the Penal Code and sentenced to death and that his appeal to the High Court was dismissed in November, 2010.
He further explains that he did not file appeal to this Court for the reason that he did not get a copy of judgment. The reasons he has given for delay have not been controverted by the respondent.
Although non availability of copy of judgment is not a reasonable explanation for failure to file a notice of appeal since a copy of judgment could only have assisted the applicant in drafting a memorandum of appeal after the lodging of the notice of appeal, I nevertheless allow the application in the interest of justice.
Accordingly, the application is allowed. The applicant is allowed to file the notice of appeal as a pauper within 14 days from the date hereof.
DATED and Delivered at Kisumu this 14th day of November, 2018.
E. M. GITHINJI
.....................................
JUDGE OF APPEAL
I certify that this is a true copy
of the original
DEPUTY REGISTRAR