[2025] KECA 633 (KLR)
The Court found that the applicant had provided a satisfactory explanation for the delay in filing his appeal, namely, the late availability of typed and certified proceedings and judgment from the High Court. Given that the applicant faces the death penalty, the Court held that it is just and fair to allow him to...
Source-derived case information.
- Citation
- [2025] KECA 633 (KLR)
- Parties
- Applicant: Victor Nyariki Nyabaru; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E028 of 2024
- Procedural Posture
- Criminal Application / Application for Extension of Time to Appeal
- Outcome
- application allowed
- Judges
- LK Kimaru
- Legal Topics
- Extension of Time, Right of Appeal, Robbery With Violence, Conviction Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Victor Nyariki Nyabaru
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient reason for delay in filing the appeal out of time.
- 2 Whether the applicant should be granted leave to file an appeal against conviction and sentence for robbery with violence.
Ratio Decidendi
The Court found that the applicant had provided a satisfactory explanation for the delay in filing his appeal, namely, the late availability of typed and certified proceedings and judgment from the High Court. Given that the applicant faces the death penalty, the Court held that it is just and fair to allow him to exercise his right of second appeal. The absence of opposition from the respondent further supported the grant of the application. Accordingly, the Court exercised its discretion under Rule 4 of the Court of Appeal Rules, 2022, to allow the application and grant leave to appeal out of time.
Court Disposition
application allowed
Orders
- The applicant is granted leave to appeal out of time.
- The notice of appeal shall be filed and served within fourteen (14) days of the date of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
Nyabaru v Republic (Criminal Application E028 of 2024) [2025] KECA 633 (KLR) (4 April 2025) (Ruling)
Neutral citation: [2025] KECA 633 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Application E028 of 2024
LK Kimaru, JA
April 4, 2025
Between
Victor Nyariki Nyabaru
Applicant
and
Republic
Respondent
(Being an application for extension of time to appeal out of time from the Judgment of the High Court of Kenya at Kisii (Patricia Gichoi, J), Dated 8th December, 2023 in HC CRA. Case No. E006 of 2022)
Ruling
1. The applicant, Victor Nyariki Nyabaru, was charged, tried and convicted for the offence of robbery with violence contrary to section 296(2) of the Penal Code. He was sentenced to death by the trial Magistrate’s court at Kisii. His first appeal to the High Court (P. Gichohi, J) was dismissed on 8th December, 2023.
2. The applicant wishes to exercise his right of second and final appeal to this Court. He has moved this Court by notice of motion under Rule 4 of the Court of Appeal Rules, 2022, to be granted leave to appeal out of time. The applicant explains the reason for the delay in lodging the appeal in time to the fact that he was unable to obtain the typed and certified copies of the proceedings and judgment in time from the High court. The applicant annexed a draft memorandum of appeal which, in his view, raises arguable grounds of appeal, including the assertion that he was not properly identified at the scene of crime.
3. The respondent is not opposed to the Court granting the applicant leave to appeal out of time.
4. This Court is satisfied by the reason advanced by the applicant for his failure to lodge the appeal in time. More importantly, since the applicant has been sentenced to serve the severest of the punishment available in the Penal Code, it is only just and fair, in the circumstances, to allow the applicant to exercise his right of second appeal to this Court.
5. In the premises therefor, the application is allowed. The applicant is granted leave to appeal out of time. The notice of appeal shall be filed and served within fourteen (14) days of today’s date.
DATED AND DELIVERED AT KISUMU THIS 4TH DAY OF APRIL, 2025. L. KIMARU…………………JUDGE OF APPEALI certify that this is a true copy of original.DEPUTY REGISTRAR.