[2025] KECA 445 (KLR)
Despite a seven-year delay in seeking leave to appeal, the court found that the interests of justice favored granting the application. The applicant's supporting affidavit provided scant information and addressed only the merits of the intended appeal, not the reasons for delay. Nevertheless, the respondent did not...
Source-derived case information.
- Citation
- [2025] KECA 445 (KLR)
- Parties
- Applicant: Joseph Ekiru Kanari; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E009 of 2025
- Procedural Posture
- Criminal Application / Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- PM Gachoka
- Legal Topics
- Leave to Appeal Out of Time, Robbery With Violence, Rape, Sentencing, Mitigation, Appellate Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ekiru Kanari
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against conviction and sentence.
- 2 Whether the delay in filing the appeal was inordinate and if it should be excused.
- 3 Whether the interests of justice warrant granting the application despite the delay.
Ratio Decidendi
Despite a seven-year delay in seeking leave to appeal, the court found that the interests of justice favored granting the application. The applicant's supporting affidavit provided scant information and addressed only the merits of the intended appeal, not the reasons for delay. Nevertheless, the respondent did not oppose the application due to the lengthy sentence. The court exercised its discretion under rule 4 of the Court of Appeal Rules 2022, noting that the guiding principles are not exhaustive and that justice is best served by allowing the applicant an opportunity to appeal. The application was allowed, with directions for filing the notice of appeal within 14 days and the record...
Court Disposition
application allowed
Orders
- The applicant shall file his notice of appeal within 14 days from the date of this ruling.
- The record of appeal shall be filed and served within 30 days thereafter.
Full Case Text
Judgment text and source record
21 paragraphs
Kanari v Republic (Criminal Application E009 of 2025) [2025] KECA 445 (KLR) (7 March 2025) (Ruling)
Neutral citation: [2025] KECA 445 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E009 of 2025
PM Gachoka, JA
March 7, 2025
Between
Joseph Ekiru Kanari
Applicant
and
Republic
Respondent
(An application for leave to appeal out of time against the conviction and sentence of the High Court of Kenya at Naivasha (Meoli, J.) delivered on 13th July 2018 in HCCRA No. 36 of 2015 Criminal Appeal 36 of 2015 )
Ruling
1. In his Notice of Motion dated 14th January 2025, the applicant seeks leave of this Court to appeal out of time from the conviction and sentence of the Naivasha High Court in HCCRA No. 36 of 2015. The applicant faced two counts in Naivasha CMC Case No. 967 of 2014; robbery with violence contrary to section 296 (2) of the Penal Code and rape contrary to section 3 (1) as read with section 3 (3) of the Sexual Offences Act. The trial court convicted him of both offences. He was sentenced to life imprisonment on the first count while the sentence on count II was held in abeyance. The appellant appealed before the Naivasha High Court. In her judgment delivered on 13th July 2018, Meoli, J. dismissed his appeal both on conviction and sentence.
2. The application is supported by the grounds on its face and his supporting affidavit 14th January 2025. He urged this Court to allow his application as his mitigation was not considered during sentence.
3. In the respondent’s written submissions dated 19th February 2025, Senior Assistant Director of Public Prosecutions Mr. Omutelema, observed that though the application was filed with inordinate delay, he did not oppose the application as the sentence meted out was lengthy.
4. The discretion set out in rule 4 of the Court of Appeal Rules 2022 is wide and discretionary. The guiding principles are not exhaustive. However, the Court is urged to take into account the length of delay, the reasons for delay, possible prejudice on the respondent, the conduct of the parties, the need to balance competing interests, the need to protect a party’s opportunity to fully litigate his dispute and the chances of succeeding.
5. I have considered the application, the period of delay, the respondent’s submissions and the law. The applicant has taken a period of seven years to demonstrate interest in appealing against the decision of the High Court. From the scanty information in the supporting affidavit, the applicant has only addressed the merit of the intended appeal. The delay is inordinate. However, the interest of justice militates towards granting leave rather than denying. Consequently, I will reluctantly allow his application and direct that he files his notice of appeal within 14 days. Thereafter, the record of appeal shall be filed and served within 30 days.
DATED AND DELIVERED AT NAKURU THIS 7TH DAY OF MARCH 2025. M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR