[2024] KECA 1744 (KLR)
The court dismissed the application for extension of time because the applicant failed to provide any reason for the delay in filing the notice of appeal. While the applicant asserted that his appeal had high chances of success and raised issues regarding the trial and sentencing, he did not address the critical...
Source-derived case information.
- Citation
- [2024] KECA 1744 (KLR)
- Parties
- Applicant: Joseph Mungai Kariuki; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E169 of 2024
- Procedural Posture
- Criminal Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed
- Judges
- MA Warsame
- Legal Topics
- Extension of Time, Appeals Process, Sexual Offences, Sentencing, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mungai Kariuki
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice of appeal.
- 2 Whether the court should exercise its discretion to extend time for filing the notice of appeal.
Ratio Decidendi
The court dismissed the application for extension of time because the applicant failed to provide any reason for the delay in filing the notice of appeal. While the applicant asserted that his appeal had high chances of success and raised issues regarding the trial and sentencing, he did not address the critical requirement of explaining the delay. The court emphasized that the exercise of discretion to extend time is contingent upon a satisfactory explanation for the delay, and in the absence of such an explanation, there was no basis to grant the application.
Court Disposition
application dismissed
Orders
- The application for extension of time to file a notice of appeal is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Kariuki v Republic (Criminal Application E169 of 2024) [2024] KECA 1744 (KLR) (4 December 2024) (Ruling)
Neutral citation: [2024] KECA 1744 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E169 of 2024
MA Warsame, JA
December 4, 2024
Between
Joseph Mungai Kariuki
Applicant
and
Republic
Respondent
(An application for extension of time to file a notice of appeal, against the judgment of the High Court at Naivasha (Olel J.) dated 31st July 2023, in HCCRA No. 12 OF 2018)
Ruling
1. The applicant, (Joseph Mungai) was convicted of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to life imprisonment in Criminal Case No. S.O 8 of 2018 at Naivasha. The High Court, (Macharia, J.) upheld the decision of the trial court in a judgment dated 3rd February 2022.
2. The applicant now wishes to appeal that decision out of time and has filed the instant application dated 16th August 2024 seeking leave to do so. The applicant in his supporting affidavit avers that the appeal has high chances of success and faults the learned Judge for failing to consider his defence and mitigation and for meting out a harsh sentence whereas the ingredients of the offence were not conclusively proved. He also seeks that the duration of one year spent in custody be counted as part of his sentence under Section 333(2) of the Criminal Procedure Code.
3. I have considered the application, memorandum of appeal and the supporting affidavit. It is evident that there has been a delay of two years and 5 months in filing the appeal against the judgment of the High Court.
4. As was stated in Fakir Mohamed vs. Joseph Mugambi & two others, Civil Application No. Nai. 332/04 (unreported) on the discretion of this Court in a Rule 4 application:“As it is unfettered, there is no limit to the number of actors the court would consider so long as they are relevant. The period of delay, the reason for the delay, (possibly) the chances of the appeal succeeding if the application is granted; the degree of prejudice to the respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with time limits; the resources of the parties, whether the matter raises issues of public importance are all relevant but not exhaustively factors. ”
5. With the above principles in mind, I note that despite stating reasons why his appeal has high chances of success, the applicant herein has not provided one single reason for the delay in filing the notice of appeal. Consequently, I find no basis to exercise my discretion in favour of the applicant and dismiss the application accordingly.
DATED AND DELIVERED AT NAKURU THIS 4TH DAY OF DECEMBER, 2024. M. WARSAME..................................JUDGE OF APPEALI certify that this is a True copy of the original.SignedDeputy Registrar