[2024] KECA 1336 (KLR)
The court found that the delay of over four years in seeking leave to file a notice of appeal was inordinate and unexplained. The applicant's assertion that the delay was caused by the court was unsubstantiated, and there was no evidence of any intention to appeal within the prescribed time. The court concluded that...
Source-derived case information.
- Citation
- [2024] KECA 1336 (KLR)
- Parties
- Applicant: Stephen Kiprotich Koech; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E070 of 2024
- Procedural Posture
- Criminal Application / Ruling on Application for Leave to Appeal and Extension of Time
- Outcome
- application dismissed
- Judges
- MA Warsame
- Legal Topics
- Extension of Time, Leave to Appeal, Defilement Offence, Life Imprisonment Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Kiprotich Koech
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Leave to Appeal and Extension of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the inordinate delay in filing the notice of appeal out of time.
- 2 Whether the court should exercise its discretion to grant leave to appeal and extension of time in the circumstances.
Ratio Decidendi
The court found that the delay of over four years in seeking leave to file a notice of appeal was inordinate and unexplained. The applicant's assertion that the delay was caused by the court was unsubstantiated, and there was no evidence of any intention to appeal within the prescribed time. The court concluded that the application was an afterthought, especially after the applicant's unsuccessful attempt at resentencing. Consequently, the court declined to exercise its discretion to extend time or grant leave to appeal.
Court Disposition
application dismissed
Orders
- The application for leave to appeal and extension of time is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
Koech v Republic (Criminal Application E070 of 2024) [2024] KECA 1336 (KLR) (1 October 2024) (Ruling)
Neutral citation: [2024] KECA 1336 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E070 of 2024
MA Warsame, JA
October 1, 2024
Between
Stephen Kiprotich Koech
Applicant
and
Republic
Respondent
(An application for leave to appeal and extension of time to file a notice of appeal against the judgment of the High Court at Nakuru(Adero J.) delivered in March,2020 in HCCRA NO. 76 OF 2012)
Ruling
1. The applicant, (Stephen Koech) has filed the instant application dated 14th May, 2024 seeking leave to file a notice of appeal out of time against the judgment of the High Court issued in HCCRA No. 76 of 2012 delivered in March, 2020 which dismissed his appeal against conviction and upheld his sentence of life imprisonment for defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act.
2. The applicant blames the delay on the failure of the High Court to furnish him with a copy of the original High Court proceedings and a copy of the judgment.
3. In opposition to the application the respondent filed written submissions and submitted that the applicant filed High Court Misc. Application No.150 of 2019 in the High Court seeking resentencing but the application was dismissed for want of jurisdiction. The also contended the applicant had admitted in the proceedings that he withdrew the appeal in the Court of Appeal so he could pursue resentencing which was tantamount to abuse of the court process.
4. The court has settled on the matters which should be taken into consideration when the court was called upon to exercise its discretion. Those matters, as was stated in the case of Leo Sila Mutiso vs Helen Wangari, (NRB) Civil Application No. 251 of 1997, include:“… first, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of the appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.”
5. In this case, an appeal, if any, should have been lodged in April 2020. However, by the time the applicant filed the instant application, for extension of time, more than four years had lapsed.
6. In my view this delay, which is inordinate and has not been explained. Furthermore, the assertion that the delay was occasioned by the Court is unsubstantiated. There is no indication whatsoever that the applicant intended to appeal. The appeal is simply an afterthought or an indication that indeed the applicant is attempting a second bite of the cherry after his application for resentencing was dismissed.
7. Consequently, I decline to exercise my discretion in favour of the applicant and dismiss the application with no order as to costs.
DATED AND DELIVERED AT NAKURU THIS 1ST DAY OF OCTOBER, 2024. M. WARSAME…………………………JUDGE OF APPEALI certify that this is a true copy of the original SignedDEPUTY REGISTRAR