[2018] KEHC 214 (KLR)
The court found that the applicant had delayed for over two years in seeking an extension of time to file a second appeal, far exceeding the statutory period of fourteen days. The only explanation provided was that the applicant's family could not afford to hire a lawyer and informed him too late, which the court...
Source-derived case information.
- Citation
- [2018] KEHC 214 (KLR)
- Parties
- Applicant: Paul Nyaga Mbaka; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 19 of 2018
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Extension of Time to File Second Appeal
- Outcome
- application dismissed
- Judges
- FN Muchemi
- Legal Topics
- Extension of Time, Appeals Process, Defilement Offence, Conviction and Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Nyaga Mbaka
Applicant
Director of Public Prosecutions
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Extension of Time to File Second Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the second appeal.
- 2 Whether the delay of over two years in seeking extension of time is justifiable under the law.
- 3 Whether the applicant's prospects of success on appeal warrant the grant of extension of time.
Ratio Decidendi
The court found that the applicant had delayed for over two years in seeking an extension of time to file a second appeal, far exceeding the statutory period of fourteen days. The only explanation provided was that the applicant's family could not afford to hire a lawyer and informed him too late, which the court found insufficient and unjustified. The court emphasized that the applicant was aware of the time limits and could have taken steps to file the appeal in person or sought assistance earlier. The unexplained and prolonged delay was deemed fatal to the application, and as such, the court exercised its discretion to disallow the extension of time.
Court Disposition
application dismissed
Orders
- The application for extension of time to file a second appeal is disallowed.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
MISC. CRIMINAL APPLICATION NO. 19 OF 2018
PAUL NYAGA MBAKA……...........................................APPLICANT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS................RESPONDENT
R U L I N G
1. This is a ruling on an application undated but filed on 08/08/2018 seeking for orders extension of time to file a second appeal in the Court of Appeal.
2. The applicant states that he was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He was sentenced to 30 years imprisonment in 2015.
3. He filled an appeal against conviction and sentence in this court which was dismissed on 14/6/2016.
4. It is stated that he wished to file a 2nd appeal but failed to do so within the stipulated time. He states that his relatives had promised to hire a lawyer for him but informed him late that they could not afford one.
5. It is further stated that the appeal has high chances of success and that his application ought to be allowed.
6. The respondent opposed this application in that the applicant has taken three (3) years before filing his 2nd appeal and that the delay has not been explained.
7. For the 2nd appeal, the applicants appeal will be restricted to issues of law and he is therefore unable to demonstrate that his appeal has any chances of success.
8. The appeal in the High Court was dismissed over two years ago. The period allowed for appeal is fourteen days.
9. The reason given that the applicant needed a lawyer to file the appeal who could not be procured for him by his family. He says he was informed too late by his family that they could not afford to hire a lawyer for him.
10. Bearing in mind that the period allowed for appeal is only fourteen (14) days, I am of the considered view that a delay of over two (2) years which has not been explained cannot be justified.
11. The applicant was aware of the period available to him to lodge an appeal. He ought to have followed up with his family to ensure he files his appeal within time in person or apply for earliest time possible.
12. I find that the long period of the delay has not been explained and this is fatal to an applicant for extension of time.
13. The application is disallowed accordingly.
14. It is hereby so ordered.
DATED, DELIVERED AND SIGNED AT EMBU THIS 30TH DAY OF OCTOBER, 2018.
F. MUCHEMI
JUDGE
In the presence of: -
Ms. Mate for Respondent
Applicant present