[2024] KECA 812 (KLR)
The court found that the applicant had provided a clear chronology of events and satisfactorily demonstrated that the delay in filing the appeal was caused by circumstances beyond his control, specifically the inaction of his previous advocate and the time taken to obtain proceedings. The respondent conceded the...
Source-derived case information.
- Citation
- [2024] KECA 812 (KLR)
- Parties
- Applicant: Geoffrey Amwai Ombeva; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E005 of 2023
- Procedural Posture
- Criminal Application / Application for Leave to File Appeal Out of Time
- Outcome
- Application allowed.
- Judges
- HA Omondi
- Legal Topics
- Extension of Time, Appeals Process, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Amwai Ombeva
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause for extension of time to file an appeal out of time.
- 2 Whether the delay in filing the appeal was inordinate or excusable.
Ratio Decidendi
The court found that the applicant had provided a clear chronology of events and satisfactorily demonstrated that the delay in filing the appeal was caused by circumstances beyond his control, specifically the inaction of his previous advocate and the time taken to obtain proceedings. The respondent conceded the application, and the court held that the delay was not inordinate. Consequently, the court exercised its discretion to grant leave to file the appeal out of time and deemed the draft petition of appeal as properly filed and served.
Court Disposition
Application allowed.
Orders
- Leave is granted to the applicant to file an appeal out of time.
- The draft petition of appeal is deemed as properly filed and served.
Full Case Text
Judgment text and source record
20 paragraphs
Ombeva v Republic (Criminal Application E005 of 2023) [2024] KECA 812 (KLR) (5 July 2024) (Ruling)
Neutral citation: [2024] KECA 812 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Application E005 of 2023
HA Omondi, JA
July 5, 2024
Between
Geoffrey Amwai Ombeva
Applicant
and
Republic
Respondent
(Being an application for leave to file an appeal out of time from the Judgment and Decree of the High Court of Kenya at Kakamega (Musyoka, J.) dated 13th May 2022 in HCCRA No. 30 of 2019)
Ruling
1. By a Notice of Motion dated 19th April, 2023, the applicant Geoffrey Amwai Ombeva, seeks that leave be granted to file an appeal out of time; and the annexed draft petition of appeal be deemed as duly filed. The application is supported by an affidavit of even date, sworn by the applicant.
2. The applicant was convicted on a charge of grevious harm, and sentenced to serve 10 years imprisonment, in Kakamega HCCRA No. 30 of 2019 delivered on 13th May, 2022. Aggrieved by the sentence imposed. Apparently, the period for lodging the appeal has lapsed as the applicant sought for copies of proceedings much earlier through the firm of A.B.L. Musiega who filed a notice of appeal but did not proceed to file a record and remained dormant. So, while he was waiting for the supply of proceedings from the trial court, time within which to file the appeal lapsed. Much later after making a change of advocate, the applicant’s current counsel M. Kiveu Advocate applied for the proceedings on his behalf; and he contends that the delay to lodge his appeal within the period allowed was thus not of his making. He has the annexed draft petition of appeal which he prays to be deemed as duly filed upon payment of the requisite fees.
3. The respondent through the Senior Prosecution Counsel, Ms.Busienei concedes the application, acknowledging that judgment having been delivered on 13th May 2022, the delay in filing the notice of appeal is not inordinate given the reasons adduced in.
4. The applicant has given a chronology of events, and aptly demonstrated that the delay was caused by events beyond his control. The application having been conceded is granted; and the draft petition of appeal is deemed as properly filed and served.
DATED AND DELIVERED AT KISUMU THIS 5TH DAY OF JULY, 2024. H. A. OMONDI………………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR