[2016] KEHC 89 (KLR)
The court found that the applicant had provided a reasonable explanation for his failure to file the appeal within the statutory period, namely lack of financial resources and inability to secure legal representation. The respondent did not oppose the application. The court exercised its discretion under Section 349...
Source-derived case information.
- Citation
- [2016] KEHC 89 (KLR)
- Parties
- Applicant: Korduni Ole Moonka; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 3 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to appeal out of time granted.
- Judges
- DB Nyakundi
- Legal Topics
- Leave to Appeal Out of Time, Pauper Appeal, Criminal Conviction Appeal, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Korduni Ole Moonka
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against conviction and sentence.
- 2 Whether the applicant has provided sufficient reasons for the delay in filing the appeal.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for his failure to file the appeal within the statutory period, namely lack of financial resources and inability to secure legal representation. The respondent did not oppose the application. The court exercised its discretion under Section 349 of the Criminal Procedure Code to grant the applicant leave to appeal out of time, emphasizing that the right to appeal should not be unduly restricted by procedural technicalities where sufficient cause for delay is demonstrated.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- The applicant is allowed to file his appeal out of time.
- The deputy registrar to ensure preparation of the record and service upon the applicant within 30 days from the date of the order.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAJIADO
CIVIL MISC. APPLICATION NO. 3 OF 2016
KORDUNI OLE MOONKA………………...…………………………………APPLICANT
VERSUS
REPUBLIC………………………………………………….........................RESPONDENT
RULING
KORDUNI OLE MOONKAhereinafter referred as the applicant filed a chamber summons application before this court on 3/3/2016 seeking the following orders pursuant to section 349 of the Criminal Procedure Code. That this court be pleased to grant leave to appeal out of time as a pauper that the filed memorandum grounds of appeal to be considered.
The chamber summons is supported by his own affidavit. He explains that he was convicted and sentenced to 15 years imprisonment for the offence of gang rape contrary to section 10 of the Sexual Offences Act. It is further averred that he was dissatisfied with both conviction and sentence as outlined in the grounds stipulated in the memorandum of appeal. That upon conviction the family member promised to hire an advocate but due to lack of financial resources the appeal time lapsed. That his appeal has overwhelming chances of success.
In reply Mr. Akula for the respondent did not oppose the application.
I have considered the applicant, submissions by the applicant and also perused the record. The applicant has explained the reasons why he could not appeal within the 14 days provided for under the law. I therefore grant the prayers sought as follows:
1. That the applicant be allowed to file his appeal out of time.
2. The deputy registrar to ensure preparation of the record and service upon the applicant within 30 days from today’s date.
3. The applicant to file his appeal within 14 days from the date of this order.
Dated, delivered and signed in open court at Kajiado on 21/7/2016
….……………………….
R. NYAKUNDI
JUDGE
Representation:
Applicant present
Mr. Akula for the Director of Public Prosecutions
Mr. Mateli – Court Assistant present