[2009] KEHC 3976 (KLR)
The court found that the applicant failed to provide adequate material to justify the exercise of discretion to allow filing of the appeal out of time. The only material placed before the court was the intended petition of appeal, and the applicant did not annex a certificate of delay or the lower court proceedings....
Source-derived case information.
- Citation
- [2009] KEHC 3976 (KLR)
- Parties
- Applicant: Julia Muthoni Mburu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 27 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- MM Kasango
- Legal Topics
- Extension of Time, Criminal Appeals, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julia Muthoni Mburu
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 grounds for the court to exercise its discretion to allow filing of an appeal out of time.
- 2 Whether the delay in obtaining proceedings and the death of the applicant's father constitute valid reasons for the delay.
Ratio Decidendi
The court found that the applicant failed to provide adequate material to justify the exercise of discretion to allow filing of the appeal out of time. The only material placed before the court was the intended petition of appeal, and the applicant did not annex a certificate of delay or the lower court proceedings. The court also noted that the death certificate relied upon by the applicant predated the lower court judgment, making it difficult to see how it contributed to the delay. Consequently, the court held that the application lacked merit and dismissed it.
Court Disposition
application dismissed
Orders
- The chamber summons dated 22nd August 2006 is dismissed.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Misc. Crim. App. 27 of 2006
JULIA MUTHONI MBURU ………..…………….… APPLICANT
versus
REPUBLIC ……………………………………… RESPONDENT
RULING
The present application dated 22nd August 2006 seeks that the applicant be allowed to file her appeal out of time. In that application the appellant through her advocate deponed that she had been charged in the lower court with the offence of creating a disturbance in a manner likely to cause a breach of the peace contrary to Section 95(1) of the Penal Code. On 10th February 2005 she was convicted and sentenced to 6 months imprisonment. On that same day she instructed her counsel to appeal against conviction and sentence. Proceedings were applied for on 16th February 2005. According to her those proceedings were not received by her counsel until 5th August 2005. That on 12th December 2004 her father had died and that together with the delayed proceedings contributed to failure to file the appeal in time. The application was opposed by the learned Principal State Counsel. In his view the application is based on sentimental reasons. He also faulted the application for failing to annex certificate of delay or the lower court proceedings. Indeed I find I am in agreement with the opposition raised. The applicant in seeking the exercise of the court’s discretion in her favour should have placed material before court to enable the court to so exercise that discretion. Apart from the intended petition of appeal the applicant did not put anything else that can assist this court. Even the death certificate relied upon shows that death occurred on 12th December 2004. The lower court judgment was delivered in February 2005. It is therefore difficult to understand how that death contributed to the delay of filing this appeal. Accordingly the order of this court is that the chamber summons dated 22nd August 2006 has no merit and is dismissed.
Dated and delivered this 10th day of February 2009
MARY KASANGO
JUDGE