[2000] KECA 265 (KLR)
The court found that the applicant did not become aware of the summary rejection of his appeal until 7th July, 1999, and that he acted without undue delay by lodging the notice and memorandum of appeal on 23rd August, 1999. The delay was therefore not inordinate. In the interests of justice, the court exercised its...
Source-derived case information.
- Citation
- [2000] KECA 265 (KLR)
- Parties
- Appellant: Julius Mwanzia Muthiani; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 92 of 1999
- Procedural Posture
- Criminal Appeal / Application for Extension of Time to File Notice and Memorandum of Appeal
- Outcome
- application allowed
- Legal Topics
- Robbery With Violence, Appeal Out of Time, Summary Rejection of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Mwanzia Muthiani
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Extension of Time to File Notice and Memorandum of Appeal
Legal Issues
- 1 Whether the delay in lodging the notice and memorandum of appeal was inordinate.
- 2 Whether the applicant should be granted leave to file the notice and memorandum of appeal out of time.
Ratio Decidendi
The court found that the applicant did not become aware of the summary rejection of his appeal until 7th July, 1999, and that he acted without undue delay by lodging the notice and memorandum of appeal on 23rd August, 1999. The delay was therefore not inordinate. In the interests of justice, the court exercised its discretion to allow the application and deemed the notice and memorandum of appeal as duly lodged within time, also granting liberty to file amended grounds of appeal if desired.
Court Disposition
application allowed
Orders
- The notice of appeal lodged on 23rd August, 1999 is deemed to be lodged in time.
- The memorandum of appeal is deemed to be lodged in time.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT MOMBASA CORAM; SHAH, J.A. (IN CHAMBERS) CRIMINAL APPEAL APPLICATION NO.92 of 1999 BETWEEN
JULIUS MWANZIA MUTHIANI.................................APPELLANT AND REPUBLIC................................................RESPONDENT
(Appeal from a conviction, judgment, order, or as the case may be) of the High Court of Kenya at Mombasa (Justice Ang'awa) dated 13th October, 1997 in H.C.CR.A. No.71 of 1997 ***************** RULING
The applicant was convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code, on 17th February, 1997. He appealed to the superior court. That appeal was summarily rejected by the superior court (Ang'awa J.). The applicant says he did not know of the fact of such summary rejection until 7th July, 1999. He lodged this notice of appeal and memorandum of appeal on 23rd of August, 1999.
The delay is not inordinate, in all the circumstances.
I allow the application and order that the notice of appeal lodged on 23rd August, 1999 be deemed to be lodged in time. I also order that the memorandum of appeal be deemed to be lodged in time. There will be liberty to lodge amended grounds of appeal if the applicant or his counsel so desire.
Dated and delivered at Mombasa this 18th day of January, 2000.
A.B. SHAH ------------------- JUDGE OF APPEAL
I certify that this a true copy of the original. DEPUTY REGISTRAR