[2024] KECA 926 (KLR)
The court found that the applicant's delay of approximately seven months in filing the notice of appeal was not inordinate given the circumstances, namely his lack of finances and inability to secure legal representation. The reasons provided were deemed plausible and satisfactory. Furthermore, the draft memorandum...
Source-derived case information.
- Citation
- [2024] KECA 926 (KLR)
- Parties
- Applicant: Michael Lenkilili; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E016 of 2024
- Procedural Posture
- Criminal Application / Application for Leave to File Notice of Appeal Out of Time
- Outcome
- Application allowed.
- Judges
- WK Korir
- Legal Topics
- Enlargement of Time, Notice of Appeal, Robbery With Violence, Conviction Appeal
- 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
Michael Lenkilili
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to File Notice of Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the notice of appeal.
- 2 Whether the period of delay is inordinate and if the discretion to enlarge time should be exercised.
- 3 Whether the intended appeal raises arguable grounds deserving a hearing.
Ratio Decidendi
The court found that the applicant's delay of approximately seven months in filing the notice of appeal was not inordinate given the circumstances, namely his lack of finances and inability to secure legal representation. The reasons provided were deemed plausible and satisfactory. Furthermore, the draft memorandum of appeal raised arguable grounds that deserved a hearing. The court exercised its discretion to enlarge time, deeming the previously filed notice of appeal as duly filed and allowing subsequent steps to proceed according to the rules.
Court Disposition
Application allowed.
Orders
- The Notice of Appeal previously filed by the applicant is deemed to have been duly filed.
- Time for all other activities consequent to the filing of a notice of appeal shall be as per the rules of the Court and time will run from the date of this ruling.
Full Case Text
Judgment text and source record
22 paragraphs
Lenkilili v Republic (Criminal Application E016 of 2024) [2024] KECA 926 (KLR) (26 July 2024) (Ruling)
Neutral citation: [2024] KECA 926 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E016 of 2024
WK Korir, JA
July 26, 2024
Between
Michael Lenkilili
Applicant
and
Republic
Respondent
(Being an application for leave to file a Notice of Appeal out of time against the judgment and decree of the High Court at Naivasha (H.I. Ong’udi, J) issued and dated 3rd November 2023 in HCCRA No. E025 OF 2024)
Ruling
1. The applicant, Michael Lenkilili, seeks enlargement of time to file a notice of appeal against the judgment delivered by Ongundi J. on 3rd November 2023 in Naivasha High Court Criminal Appeal No E025 of 2024. The grounds in support of the plea for enlargement of time are that the applicant was charged and convicted of robbery with violence contrary to section 296(2) of the Penal Code. Subsequently, he was sentenced to serve 90 years’ imprisonment. Upon conviction, he relied on his family to secure him an advocate but that did not come to fruition due to lack of finances hence his failure to file the notice of appeal within the prescribed period.
2. The respondent did not file a replying affidavit in this matter.When the application was placed before me for hearing in chambers on 18th July 2024, the respondent had filed written submissions. It was the submission of the respondent’s counsel that even though the delay in filing the notice of appeal was inordinate, the length of the prison sentence imposed upon the applicant warrants a hearing of the applicant’s intended appeal and the respondent was therefore not opposed to the application.
3. The power to enlarge time as sought in this application is donated by rule 4 of the Court of Appeal Rules. The principles already established through caselaw for the exercise of the discretion includes the period of and reason for the delay and the chances of the appeal succeeding.
4. In this application, the impugned judgment was delivered on 3rd November 2023 while the present application, though undated is being heard in July 2024. I would therefore estimate the period of delay to be about 7 months. The reasons given for the delay are a lack of finances and failure to secure the services of an advocate. Considering that the applicant was sentenced to 90 years imprisonment, the period of delay of about 7 months, in my view, is not inordinate. The reasons tendered by the applicant are also plausible and I find them to be satisfactory.
5. Additionally, I have also read through the annexed draft memorandum of appeal which raises 6 grounds. Having read through them, I find that those grounds deserve a hearing before the Court.
6. In the end, I am satisfied that the applicant has met the threshold for the exercise of discretion by this Court to enlarge time. The Notice of Appeal previously filed by the applicant is therefore deemed to have been duly filed. The time for all the other activities consequent to the filing of a notice of appeal shall be as per the rules of the Court and time will run from the date of this ruling.
DATED AND DELIVERED AT NAKURU THIS 26TH DAY OF JULY, 2024W. KORIR…………......……………..JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR