[2024] KECA 1729 (KLR)
The court found that the applicant's explanation for the 17-year delay in seeking extension of time to file a notice of appeal was not plausible. The financial constraints cited did not constitute sufficient cause, as there is no requirement for a convicted person to hire an advocate or incur costs to file a notice...
Source-derived case information.
- Citation
- [2024] KECA 1729 (KLR)
- Parties
- Applicant: Nicholus Ngitari; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E190 of 2024
- Procedural Posture
- Criminal Application / Ruling on Application for Extension of Time to File Notice of Appeal
- Outcome
- application dismissed
- Judges
- MA Warsame
- Legal Topics
- Extension of Time, Notice of Appeal, Criminal Appeal Procedure
- 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
Nicholus Ngitari
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the inordinate delay of nearly 17 years in seeking extension of time to file a notice of appeal.
- 2 Whether the court should exercise its discretion under Rule 4 of the Court of Appeal Rules to grant the extension sought.
Ratio Decidendi
The court found that the applicant's explanation for the 17-year delay in seeking extension of time to file a notice of appeal was not plausible. The financial constraints cited did not constitute sufficient cause, as there is no requirement for a convicted person to hire an advocate or incur costs to file a notice of appeal. The court held that the delay was inordinate and that the application was an afterthought. Consequently, the court declined to exercise its discretion to extend time under Rule 4 of the Court of Appeal Rules and dismissed the application as devoid of merit.
Court Disposition
application dismissed
Orders
- The application dated 10th September 2024 for extension of time to file a notice of appeal is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Ngitari v Republic (Criminal Application E190 of 2024) [2024] KECA 1729 (KLR) (4 December 2024) (Ruling)
Neutral citation: [2024] KECA 1729 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E190 of 2024
MA Warsame, JA
December 4, 2024
Between
Nicholus Ngitari
Applicant
and
Republic
Respondent
(An application for extension of time to file a notice of appeal, against the judgment of the High Court at Nakuru (Koome, J.) dated 26th November 2007 in HCCRA No. 81 OF 2006)
Ruling
1. Nicholas Ngitari (the applicant) was charged with murder contrary to section 203 as read with section 204 of the Penal Code. He was tried, convicted and sentenced to death on 26th November 2007.
2. He however was not able to file his appeal within the required period and thus by this notice of motion dated 10th September 2024, seeks to be granted leave to file his intended appeal out of time frame.
3. The reason for delay as explained in his supporting affidavit is that his family, whom he was dependent on, faced financial constraints and were unable to hire an Advocate.
4. Considering that the delay in bringing the instant application is almost 17 years, I do not find the applicant’s explanation plausible. There is no requirement for a convicted person to expend funds to file a notice of appeal or a requirement that an advocate to be the one to file it. It seems to me that the present application is an afterthought, brought too late in the day.
5. I accordingly find the delay inordinate and the application devoid of merit, and I decline to exercise the discretion granted under Rule 4 of the Court of Appeal Rules to extend time for the applicant. The application dated 10th September, 2022 is therefore dismissed.
DATED AND DELIVERED AT NAKURU THIS 4TH DAY OF DECEMBER, 2024. M. WARSAME……………………JUDGE OF APPEALI certify that this is a True copy of the original.SignedDEPUTY REGISTRAR