[2024] KECA 1641 (KLR)
The Court found that the applicant had provided sufficient reasons for the delay in filing the appeal, including not being supplied with the High Court judgment in time. The respondent did not oppose the application and conceded that the lengthy sentence was a relevant consideration. The Court exercised its...
Source-derived case information.
- Citation
- [2024] KECA 1641 (KLR)
- Parties
- Applicant: David Macharia Kariuki; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E126 of 2024
- Procedural Posture
- Criminal Application / Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- PM Gachoka
- Legal Topics
- Extension of Time, Leave to Appeal, Conviction and Sentence, Sexual Offences, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Macharia Kariuki
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has met the threshold for extension of time to file an appeal out of time.
- 2 Whether the delay in filing the appeal is excusable under the circumstances.
- 3 Whether the applicant was prejudiced by not being supplied with the High Court judgment in time.
Ratio Decidendi
The Court found that the applicant had provided sufficient reasons for the delay in filing the appeal, including not being supplied with the High Court judgment in time. The respondent did not oppose the application and conceded that the lengthy sentence was a relevant consideration. The Court exercised its discretion under Rule 4 of the Court of Appeal Rules, 2022, and allowed the application for extension of time, finding that the threshold for such discretion had been met. The applicant was granted 14 days to file the notice of appeal and 30 days to file and serve the record of appeal.
Court Disposition
application allowed
Orders
- The application dated 12th July 2024 is allowed.
- The applicant shall file his notice of appeal within 14 days from the date of this order.
Full Case Text
Judgment text and source record
21 paragraphs
Kariuki v Republic (Criminal Application E126 of 2024) [2024] KECA 1641 (KLR) (15 November 2024) (Ruling)
Neutral citation: [2024] KECA 1641 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E126 of 2024
PM Gachoka, JA
November 15, 2024
Between
David Macharia Kariuki
Applicant
and
Republic
Respondent
(An application for leave to appeal out of time against the conviction and sentence from the judgment of the High Court of Kenya at Naivasha (Ngenye, J.) delivered on 24th February 2022 in HCCRA No. 14 of 2019)
Ruling
1. In his Notice of Motion dated 12th July 2024, the applicant seeks leave of this Court to appeal out of time against the conviction and sentence of the High Court sitting at Naivasha in HCCRA No. 14 of 2019. The applicant was charged in Naivasha CM Criminal Case no. 45 of 2018 with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. After full trial, the applicant was convicted and sentenced to life imprisonment. His appeal against that conviction and sentence was dismissed by Ngenye, J. (as she then was) on 24th February 2022. It is for this reason that the applicant seeks to appeal against that judgment.
2. The application is supported by the grounds on the body of the Motion and his supporting affidavit sworn on 12th July 2024. He prayed that his application be allowed for the following reasons: the age of the complainant was not taken into account when convicting him; the sentence metered out was harsh and excessive; he was not supplied with the judgment of the High Court in good time to enable him pursue the appeal.
3. The application was not opposed. In its written submissions dated 30th October 2024, the state, through Senior Assistant Director of Public Prosecutions Mr. Omutelema submitted that while there was a delay in filing the application, the same ought to be allowed since the sentence meted out was lengthy.
4. Rule 4 of this Court’s Rules 2022 provides that the Court may extend the time limited by these Rules for the doing of any act authorized or required by the Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. Its principles have been well enunciated by our Apex Court in the case of Nicholas Kiptoo Arap Korir Salat vs. Independent Electoral and Boundaries Commission & 7 others [2014] eKLR. We need note rehash those principles.
5. I have considered the Notice of Motion, the supporting affidavit, the respondent’s concession to the application and the law. I have also considered the draft memorandum of appeal annexed to the application. I am satisfied to hold that the application has met the threshold for the exercise of discretion by this Court. Consequently, the application dated 12th July 2024 is allowed. The applicant shall file his notice of appeal within 14 days from the date of this order. Thereafter, the record of appeal shall be filed and served within 30 days from the date hereof to fast track the disposal of the appeal.
DATED AND DELIVERED AT NAKURU THIS 15TH DAY OF NOVEMBER 2024. M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR