[2024] KECA 779 (KLR)
The court found that the applicant had provided a plausible and satisfactory explanation for the delay in filing the appeal, namely financial constraints and inability to hire an advocate. The court relied on the principle that the law does not prescribe a minimum or maximum period of delay, but requires that any...
Source-derived case information.
- Citation
- [2024] KECA 779 (KLR)
- Parties
- Applicant: Paul Thumbi Nginyu; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal (Application) E022 of 2024
- Procedural Posture
- Criminal Appeal / Application for Leave to Appeal Out of Time
- Outcome
- Application allowed. Leave to file appeal out of time granted.
- Judges
- JM Mativo
- Legal Topics
- Extension of Time, Appeal Out of Time, Robbery With Violence, Discretionary Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Thumbi Nginyu
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided a satisfactory explanation for the delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to grant leave to appeal out of time.
Ratio Decidendi
The court found that the applicant had provided a plausible and satisfactory explanation for the delay in filing the appeal, namely financial constraints and inability to hire an advocate. The court relied on the principle that the law does not prescribe a minimum or maximum period of delay, but requires that any delay be satisfactorily explained. The respondent did not oppose the application and supported the reasons advanced. The court was satisfied that this was a proper case to exercise its discretion in favour of the applicant and granted leave to file the appeal out of time.
Court Disposition
Application allowed. Leave to file appeal out of time granted.
Orders
- The applicant shall file the Notice of Appeal and Memorandum of Appeal within 14 days.
- The Record of Appeal shall be filed within 45 days from the date of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
Nginyu v Republic (Criminal Appeal (Application) E022 of 2024) [2024] KECA 779 (KLR) (4 July 2024) (Ruling)
Neutral citation: [2024] KECA 779 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Appeal (Application) E022 of 2024
JM Mativo, JA
July 4, 2024
Between
Paul Thumbi Nginyu
Applicant
and
Republic
Respondent
(Being an application for leave to file an appeal out of time from the Judgment of the High Court of Kenya at Nyahururu (Kariuki J.) dated 23rd September 2021 in HCCRA No. E003 of 2020 Criminal Appeal E002 & E003 of 2020 )
Ruling
1. The application before me is undated. The main prayer sought is leave to appeal out of time against the judgment issued in HCCRA No. E003 of 2020 on 23rd September 2021.
2. The applicant, Paul Thumbi Nginyu, was charged, tried and convicted and sentenced to suffer death by the Chief Magistrate’s Court in Criminal Case No. 2197 of 2016, Nyahururu for the offence of robbery with violence contrary to section 295 as read with 296(2) of the Penal Code. His appeal against conviction and sentence was dismissed. However, he did not lodge his notice of appeal within the statutory-stipulated time of 14 days. His present application invokes rule 4 of the Court of Appeal Rules, 2022 to enlarge time to appeal. The applicant cites financial constraints and in ability to hire an advocate as the reason for the delay. The respondent in its submissions dated 3rd July 2024 support the application.
3. There has been a 2 years and 7 months delay in filing the appeal against the judgment of the High Court. The applicant’s position is that the delay was occasioned by his relatives’ financial constraint.
4. The Supreme Court of Kenya pronounced itself in the question of extension of time in the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, and stated as follows:“the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”
5. I am satisfied that this is a proper case for me to exercise my discretion in favour of the applicant. Accordingly, I allow the applicant’s application and order that the Notice of Appeal and Memorandum of Appeal be filed within 14 days. The Record of Appeal shall be filed within 45 days from today.
DATED AND DELIVERED AT NAKURU THIS 4 OF JULY, 2024. J. MATIVO..................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR