[2012] KEHC 671 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the delay in seeking leave to file the appeal out of time. Although the applicant claimed to have received certified proceedings on 24/4/2012, he did not demonstrate when he applied for the proceedings or obtain a certificate of...
Source-derived case information.
- Citation
- [2012] KEHC 671 (KLR)
- Parties
- Appellant: Ndii Mwakirie; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 19 of 2012
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application dismissed
- Judges
- HI Ong'udi
- Legal Topics
- Extension of Time, Criminal Appeals, Delay in Filing, Leave to Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndii Mwakirie
Appellant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to File 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 leave to file the appeal out of time should be granted.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the delay in seeking leave to file the appeal out of time. Although the applicant claimed to have received certified proceedings on 24/4/2012, he did not demonstrate when he applied for the proceedings or obtain a certificate of delay from the trial court. The proceedings were certified on 22/3/2012, and even if received on 24/4/2012, the applicant did not explain the further delay until 19/7/2012 when the application was filed. The unexplained delay of 3-4 months was deemed inexcusable, and the statutory period for filing a criminal appeal is 14 days. In the absence of any credible explanation, the court...
Court Disposition
application dismissed
Orders
- The application for leave to file appeal out of time is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
High Court at Embu
Miscellaneous Criminal Application 19 of 2012
NDII MWAKIRIE……………..................................……...APPELLANT
VERSUS
REPUBLIC.................................................................RESPONDENT
R U L I N G
The Applicant has come before this Court under Section 349 of the Criminal Procedure Code praying for leave to file appeal out of time. The Application is dated 13/7/2012 and was filed on 19/7/2012. The grounds are on the face of the application. The main ground is that the applicant received a certified copy of proceedings on 24/4/2012. In his supporting affidavit he states that Judgment was delivered on 28/12/2011 and received the certified proceedings on 24/4/2012. And that he is being harassed by the probation officer to vacate the land.
With leave of the Court, Mr. Omayo for the State filed a replying affidavit opposing the application saying there is no good reason given for the delay.
There is no dispute that the Judgment the applicant wishes to appeal from was delivered on 28/12/2011. the Applicant has not shown this Court when he applied for proceedings. He did not also obtain any certificate of delay from Senior Principal Magistrate's Court Siakago to show that it is the Court that delayed in supplying the proceedings.
His annexture CMK shows that the proceedings were certified on 22/3/2012. If indeed he obtained them on 24/4/2012, what was the reason for the delay? Even if he obtained them on 24/4/2012, what made him not apply for leave until 19/7/2012? This is an unexplained delay of 3-4 months. It was his duty to explain the delay. The period for filing a criminal appeal is 14 days.In the absence of any explanation for the delay I find no merit in the application which I dismiss.
DELIVERED, DATED AND SIGNED AT EMBU THIS 30TH DAY OF OCTOBER 2012.
H.I. ONG'UDI
JUDGE
In the presence of:-
Mr. Omayo for State
Applicant
Njue CC