[2018] KEHC 5969 (KLR)
The court found that although the delay in filing the appeal was inordinate and the reasons advanced by the applicant were not credible, the severity of the sentence imposed—death, the most severe in the Kenyan penal system—warranted the applicant being given an opportunity to have his case reconsidered by a second...
Source-derived case information.
- Citation
- [2018] KEHC 5969 (KLR)
- Parties
- Applicant: Miregi Lekumusa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 22 of 2018
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- A Mabeya
- Legal Topics
- Leave to Appeal Out of Time, Robbery With Violence, Death Sentence, Conviction Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miregi Lekumusa
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient and credible reasons for the inordinate delay in filing the appeal out of time.
- 2 Whether the applicant should be granted leave to appeal out of time against a conviction and sentence of death for robbery with violence.
Ratio Decidendi
The court found that although the delay in filing the appeal was inordinate and the reasons advanced by the applicant were not credible, the severity of the sentence imposed—death, the most severe in the Kenyan penal system—warranted the applicant being given an opportunity to have his case reconsidered by a second court. The court also considered the recent Supreme Court decision declaring the mandatory death sentence unconstitutional, which could potentially affect the outcome or sentence if the appeal were heard. Balancing these factors, the court exercised its discretion to allow the application for leave to appeal out of time in the interests of justice.
Court Disposition
application allowed
Orders
- The application for leave to appeal out of time is allowed.
- The petition of appeal annexed to the application is deemed as filed with leave.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CRIMINAL APPLICATION CASE NO. 22 OF 2018
MIREGI LEKUMUSA.................................................APPLICANT
VERSUS
REPUBLIC................................................................RESPONDENT
R U L I N G
1. MINGI LEKUMUSA (“the Applicant”)has applied for leave to appeal out of time. He is aggrieved against the judgment and conviction of Hon. Maundu in the Isiolo Cr. Case. No. 229 of 2011 R vs. Miregi Lekumusamade on 20th January, 2012 in which he was sentenced to suffer death for robbery with violence contrary to section 296 of the Penal Code Cap 63 of the Laws of Kenya.
2. The time for appealing expired on 15th January, 2012. He lodged the present application on 6th March, 2018. There is therefore a delay of one (5) years and ten (10) months. That, in my view, is in all circumstances, inordinate.
3. The reasons advanced for the delay is that the relatives of the applicant had promised to hire an Advocate for him to prefer an appeal to this court but they did not. That as a result he was not able to appeal in time. The Applicant has contended that the intended appeal has overwhelming chances of success.
4. Having considered the case in its entirety, I find the reasons advanced for the delay not to be credible. It is not feasible that a family that had promised to hire an Advocate could fail to do so and the applicant wait for nearly six years to prefer the present application. To my mind, that is not a plausible explanation.
5. I have considered the sentence metted out to the applicant. The applicant was sentenced to suffer death which is the ultimate sentence in our penal system. Six years may be a very long time to allow a convict who has undergone a legal process and is serving a lawful sentence to come back to appeal against such an old decision.
6. I have considered that the applicant has not had an opportunity to have his case reconsidered by a second court. That the sentence metted out on him is the most severe one in our penal system. That in the event he has a second bite on the cherry, there is a likelihood of either having a different decision arrived at or the sentence being reconsidered now that the Supreme Court of Kenya has ruled that the death sentence is unconstitutional.
7. In view of the foregoing, I am persuaded that I should allow the applicant a chance to have his case re-looked afresh by a different court.
8. Accordingly, I allow the application. The petition of appeal annexed to the application is hereby deemed as filed with leave. Let a Criminal Appeal file be opened and the petition be served upon the Director of Public Prosecutions.
It is so ordered.
DATED and DELIVERED at MERU this 28th day of June, 2018.
A. MABEYA
JUDGE