[2017] KEHC 3153 (KLR)
The court found that the applicant had provided a credible and plausible explanation for the delay in filing the appeal, namely a breakdown in communication between the Prisons Documentation Office and the court registry. The court further considered the length of the sentence being served by the applicant and...
Source-derived case information.
- Citation
- [2017] KEHC 3153 (KLR)
- Parties
- Applicant: Nicholas Mwenda; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 40 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Judges
- A Mabeya
- Legal Topics
- Leave to Appeal Out of Time, Defilement Offence, Conviction Appeal, Sentence Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Mwenda
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient cause for the delay in filing the appeal out of time.
- 2 Whether leave to appeal out of time should be granted in the circumstances.
Ratio Decidendi
The court found that the applicant had provided a credible and plausible explanation for the delay in filing the appeal, namely a breakdown in communication between the Prisons Documentation Office and the court registry. The court further considered the length of the sentence being served by the applicant and determined that it would be just and fair to grant him an opportunity to have his case heard by a higher court. Consequently, the court exercised its discretion to grant leave to appeal out of time.
Court Disposition
leave to appeal out of time granted
Orders
- Leave to appeal out of time is granted as prayed.
- The Notice of Appeal shall be filed within 14 days of the date hereof.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CRIMINAL APPLICATION CASE NO. 40 OF 2017
NICHOLAS MWENDA .……..APPLICANT
VERSUS
REPUBLIC ……………… RESPONDENT
RULING
1. Nicholas Mwenda has applied for leave to appeal out of time. He is aggrieved against the judgment of this Court (Hon. Kiarie J.) made on 11th May, 2016 upholding the judgment of the Senior Resident Magistrate’s Court, Githongo wherein he had been convicted with the offence of defilement contrary to Section 8 (1) (3) of the Sexual Offenses Act.
2. The time for appealing expired on 25th May, 2014. There is therefore a delay of three (3) years and four (4) months. That is in all circumstances, inordinate.
3. The reasons advanced for the delay is that there occurred a filing problem between the Prisons Documentation Office and this Court’s registry whereby he was unable to lodge his 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 to be credible. It is not farfetched that, in the normal course of events, there can be breakdown of communication between this Court’s registry and the Prisons Department wherein the Applicant is being held. To my mind, that is a plausible explanation.
5. Further, and what weighed heavily on my decision, considering the long sentence which the Applicant is serving and that he has only spent three years out of the twenty he is serving, it is just and fair to grant the Applicant an opportunity to ventilate his case before a higher Court for consideration.
6. Accordingly, leave is granted as prayed. The Notice of Appeal be filed within 14 days of the date hereof.
DATED and DELIVERED at MERU this 4th day of October, 2017.
A. MABEYA
JUDGE