[2024] KECA 1767 (KLR)
The court found that the delay of almost 8 years in filing the application for extension of time was inordinate and that the applicant's explanation, attributing the delay to the High Court's failure to furnish the judgment, was unsubstantiated. There was no evidence that the applicant made any effort to obtain the...
Source-derived case information.
- Citation
- [2024] KECA 1767 (KLR)
- Parties
- Applicant: Joseph Kongoto; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E198 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, Defilement Offence, Sexual Offences Act, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kongoto
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 inordinate delay in filing the notice of appeal.
- 2 Whether the court should exercise its discretion to extend time for filing the notice of appeal under Rule 4 of the Court of Appeal Rules.
Ratio Decidendi
The court found that the delay of almost 8 years in filing the application for extension of time was inordinate and that the applicant's explanation, attributing the delay to the High Court's failure to furnish the judgment, was unsubstantiated. There was no evidence that the applicant made any effort to obtain the judgment or to indicate an intention to appeal within a reasonable period. The court held that the application was an afterthought and that the applicant had not met the threshold for the exercise of the court's discretion under Rule 4. Consequently, the application lacked merit and was dismissed.
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
20 paragraphs
Kongoto v Republic (Criminal Application E198 of 2024) [2024] KECA 1767 (KLR) (4 December 2024) (Ruling)
Neutral citation: [2024] KECA 1767 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E198 of 2024
MA Warsame, JA
December 4, 2024
Between
Joseph Kongoto
Applicant
and
Republic
Respondent
(An application for extension of time to file a notice of appeal, against the judgment of the High Court at Bomet (Muya, J.) dated 19th September 2016 in HCCRA No. 46 OF 2015)
Ruling
1. Before me is an undated application seeking leave to appeal out of time against the judgment issued in HCCRA No. 46 of 2015 delivered on 19th September 2016 wherein the applicant 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
2. The applicant blames the delay on the failure of the High Court to furnish him with a copy of the judgment.
3. The court has settled on the matters which should be taken into consideration when the court was called upon to exercise its discretion under Rule 4. 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.”
4. By the time the applicant filed the present application for extension of time, the period which had lapsed was almost 8 years. In my view this delay is inordinate and the explanation that the delay was occasioned by the Court is unsubstantiated. Furthermore, there is no indication whatsoever that the applicant intended to appeal or attempted to obtain the judgment of the Court. The appeal is simply an afterthought. Consequently, the application lacks merit and is dismissed.
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