[2024] KECA 1782 (KLR)
The Court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, including mental anguish and lack of access to counsel while incarcerated. The respondent did not oppose the application and, in fact, supported it due to the lengthy sentence. The Court, applying its...
Source-derived case information.
- Citation
- [2024] KECA 1782 (KLR)
- Parties
- Applicant: Vincent Kipkurui Koros; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E207 of 2024
- Procedural Posture
- Criminal Application / Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to appeal out of time granted.
- Judges
- PM Gachoka
- Legal Topics
- Extension of Time, Appeals Process, Defilement Offence, Sentencing, Conviction Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Kipkurui Koros
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether the Court should exercise its discretion under Rule 4 to extend time for filing an appeal against conviction and sentence.
- 3 Whether the respondent would suffer prejudice if the application is granted.
Ratio Decidendi
The Court found that the applicant had provided a reasonable explanation for the delay in filing the appeal, including mental anguish and lack of access to counsel while incarcerated. The respondent did not oppose the application and, in fact, supported it due to the lengthy sentence. The Court, applying its unfettered discretion under Rule 4 and guided by the principles set out in Fakir Mohammed v. Joseph Mugambi, determined that the threshold for extension of time had been met. The Court confined itself to the issue of delay and found the explanation satisfactory, thus granting the application for leave to appeal out of time.
Court Disposition
Application allowed. Leave to appeal out of time granted.
Orders
- The applicant shall file his notice of appeal within 14 days from the date of the ruling.
- The record of appeal shall be filed within 30 days thereafter.
Full Case Text
Judgment text and source record
21 paragraphs
Koros v Republic (Criminal Application E207 of 2024) [2024] KECA 1782 (KLR) (6 December 2024) (Ruling)
Neutral citation: [2024] KECA 1782 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E207 of 2024
PM Gachoka, JA
December 6, 2024
Between
Vincent Kipkurui Koros
Applicant
and
Republic
Respondent
(An application for leave to appeal out of time against the conviction and sentence of the High Court of Kenya at Kericho (Ongeri, J.) delivered on 1st July 2022 in HCCRA No. E012 of 2022)
Ruling
1. By Notice of Motion dated 1st October 2024, the applicant seeks leave of this Court to appeal out of time against the conviction and sentence of the Kericho High Court in HCCRA No. E012 of 2022. The applicant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offence Act in Kericho CM (SO) Case No. 29 of 2016. The trial court convicted him of the offence and sentenced him to life. The applicant appealed before the High Court where Ongeri, J. upheld the conviction and affirmed the sentence on 1st July 2022. The applicant then filed an application for revision of that sentence in Kericho High Court Criminal Misc. App. No. E061 of 2023 vide his Notice of Motion dated 24th July 2023. In its ruling dated 21st May 2024, Sergon, J. allowed his application. His sentence was set aside and substituted with a sentence of 30 years’ imprisonment.
2. The applicant is aggrieved with the findings in Kericho HCCRA No. E012 of 2016 hence the present application. It is supported by his affidavit sworn on 1st October 2024, memorandum of appeal and notice of appeal. It is based on the following grounds: he was initially acquitted but the matter was reheard as the prosecution appealed against that acquittal; as a result, he suffered shock and mental anguish and was thus unable to file the present appeal in good time; he was unable to obtain the services of counsel as he was in prison; the delay is excusable; and the respondent stood to suffer no prejudice if the prayers sought in application were granted.
3. The state filed its written submissions dated 14th November 2024. Senior Assistant Director of Public Prosecutions Mr. Omutelema urged this Court to allow the application since the sentence meted out was lengthy.
4. The present application is hinged on the provisions of rule 4 of this Court’s rules which grants this Court powers to extend time for inter alia, appealing out of time. In Fakir Mohammed vs. Joseph Mugambi and two others [2005] eKLR, the Court set out this Court’s jurisdiction in determination of applications made under Rule 4. The discretion is unfettered. In its decision, the Court observed:“The exercise of this Court’s discretion under Rule 4 has followed a well-beaten path since the stricture of “sufficient reason” was removed by amendment in 1985. As it is unfettered, there is no limit to the number of factors the court would consider so long as they are relevant. The period of delay, the reason for the delay, 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 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 exhaustive factors.”
5. I have considered the reason advanced by the applicant, the respondent’s submissions, and the law. I have also taken due consideration of the proceedings and outcome in Kericho High Court Criminal Misc. App. No. E061 of 2023. At this stage, I will confine myself to the question of delay in filing the appeal. I note that the delay in filing the appeal is explained. Taking into account the reason advanced by the applicant, the respondent’s opposition, the applicant’s grounds in support of the appeal and the law, I find that the application has met the threshold donated by this Court in the exercise of its jurisdiction. Consequently, I direct the applicant to file his notice of appeal within 14 days from today’s date. Thereafter, the record of appeal shall be filed within 30 days.
DATED AND DELIVERED AT NAKURU THIS 6THDAY OF DECEMBER 2024. M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEAL**I certify that this is a True copy of the originalSignedDEPUTY REGISTRAR