[2024] KECA 1380 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay of more than six years in seeking to file a notice of appeal out of time. The applicant's reliance on family members and financial constraints was not deemed sufficient justification for the prolonged inaction....
Source-derived case information.
- Citation
- [2024] KECA 1380 (KLR)
- Parties
- Applicant: Hilary Omondi; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E071 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, Appeals Process, Robbery With Violence, Discretionary Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hilary Omondi
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 a satisfactory explanation for the delay in filing the notice of appeal out of time.
- 2 Whether the court should exercise its discretion to extend time for filing the notice of appeal.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for the inordinate delay of more than six years in seeking to file a notice of appeal out of time. The applicant's reliance on family members and financial constraints was not deemed sufficient justification for the prolonged inaction. The court held that the discretion to extend time is only exercisable upon valid and clear reasons, which were absent in this case. Consequently, the court declined to exercise its discretion in favour of the applicant and dismissed the application.
Court Disposition
application dismissed
Orders
- The application dated 6th May, 2024 is dismissed.
Full Case Text
Judgment text and source record
21 paragraphs
Omondi v Republic (Criminal Application E071 of 2024) [2024] KECA 1380 (KLR) (8 October 2024) (Ruling)
Neutral citation: [2024] KECA 1380 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E071 of 2024
MA Warsame, JA
October 8, 2024
Between
Hilary Omondi
Applicant
and
Republic
Respondent
(An application for extension of time to file a notice of appeal against the judgment of the High Court at Bomet (Muia, J.) dated 19th October 2019 in HCCRA. No. 34 of 2017)
Ruling
1. The applicant, (Hilary Omondi) has filed the instant application dated 6th May 2024 seeking leave to file a notice of appeal out of time against the judgment of the High Court issued in HCCRA No. 34 of 2017 which dismissed his appeal against conviction and death sentence for the offence of robbery with violence contrary to Section 296 as read with Section 297 of the Penal Code.
2. The applicant now wishes to appeal that decision out of time and has filed the instant application to that effect. The main reason for the delay of about four years and six months is that he was depending on his family members to procure him and advocate, but they have been unsuccessful due to financial constraints.
3. In determining the matter, I am guided by the dicta in Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, where it was held that:“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 the 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.”
4. Whereas the Applicant is entitled to legal counsel, he has not explained why he went to slumber for more than six years and did not move this court in good time. The period of six years is inordinate and the fact that he wants to file appeal as a pauper is an afterthought.
5. Consequently, I decline to exercise my discretion in favour of the applicant and dismiss the application dated 6th May, 2024.
DATED AND DELIVERED AT NAKURU THIS 8TH DAY OF OCTOBER, 2024. M. WARSAME...................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR