[2009] KEHC 1793 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely the late availability of the proceedings and judgment from the trial court, as evidenced by the annexed certificate of delay. The court was satisfied that the delay was not occasioned by the...
Source-derived case information.
- Citation
- [2009] KEHC 1793 (KLR)
- Parties
- Appellant: Kenneth Kipngetich Kirui; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 10 of 2009
- Procedural Posture
- Criminal Miscellaneous Application / Application for Leave to Appeal Out of Time
- Outcome
- Application for leave to appeal out of time granted.
- Legal Topics
- Leave to Appeal Out of Time, Delay in Obtaining Proceedings, Criminal Appeals, Sexual Offences, Sentencing, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenneth Kipngetich Kirui
Appellant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for failing to file an appeal within the statutory period.
- 2 Whether the delay in obtaining proceedings constitutes a valid ground for extension of time to appeal.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, namely the late availability of the proceedings and judgment from the trial court, as evidenced by the annexed certificate of delay. The court was satisfied that the delay was not occasioned by the applicant's fault but by administrative processes beyond his control. In the absence of opposition from the State and in light of the supporting documentation, the court exercised its discretion under Section 349 of the Criminal Procedure Code to grant leave to appeal out of time. The applicant was accordingly allowed to file the intended appeal within fourteen days from the date of the...
Court Disposition
Application for leave to appeal out of time granted.
Orders
- The applicant is granted leave to file an appeal out of time.
- The appeal shall be filed within fourteen (14) days from the date of this ruling.
Full Case Text
Judgment text and source record
47 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
Criminal Miscellaneous Application 10 of 2009
1. Criminal Law
2. Miscellaneous Criminal Application for
i) Leave to apply out of time
ii) Section 349Criminal Procedure Code Cap 75
iii) Reasons for Delay in not filing Appeal
a) Not being able to entertain copies of proceedings of judgment in SPMCC 1621/08 in time.
b) Certificate of delay
c) Sentence attempted defilement of minor aged six (6) years old.
Alternative incident
Assault
Ten (10) years imprisonment on main count.
3. Application not opposed by state
iv)
4. Held application granted
i) Appeal to be filed within fourteen (14) days of to-days date
5. Case law - Nil
6. Advocate
S.G. O”nganyi & Co. advocate instructed by the firm of M/S S.G. O’nganyi & Co. advocates
for the Applicants originally accused – present
P. Kiprop State Counsel instructed by the Attorney General for the Respondent - present
KENNETH KIPNGETICH KIRUI …………………APPELLANT
VERSUS
REPUBLIC……………………………….………RESPONDENT
RULING
Leave to appeal out of time
Application dated 21st July, 2009
I: Background
1. Facing a count of attempted defilement of a minor child contrary to section 10 (1)(2) of the Sexual Offence Act and an alternative on second count of Indecent Assault contrary to section 11(1) of the sexual offence, the applicant offender after trial was sentenced to ten(10) years imprisonment.
2. The time to appeal against this conviction and sentence was fourteen (14) days. He failed to do so and brings this present application seeking leave to appeal out of time.
II: Leave to appeal out of time 21st July2009.
3. The applicant gave reasons for failing to appeal within the fourteen (14) days as being attributed to the Senior Principal Magistrate Criminal case No. 1621/08 proceedings having not been filed on time.
4. The applicant also took time to find an advocate to represent him on appeal.
III: Findings
5. Section 349 of the criminal procedure code, at the “provisions” Permits to this court to allow an advocate file an appeal out of time where it has been demonstrated that the delay was caused by obtaining the said proceedings.
6. This court accordingly noted that the application has annexed proceedings accompanied by a certificate of delay from the courts and a memorandum of the proposed appeal.
7. The said application is therefore granted with orders that the appeal be granted and filed within a period of fourteen (14) days from to days date.
DATED this 31st day of July, 2009 at KERICHO.
M.A.ANG’AWA
JUDGE
Advocate
S.G. O”nganyi & Co. advocate instructed by the firm of M/S S.G. O’nganyi & Co. advocates
for the Applicants originally accused – present
P. Kiprop State Counsel instructed by the Attorney General for the Respondent - present