[2019] KEHC 5894 (KLR)
The court found that the applicant did not demonstrate good cause for the delay in filing the appeal. The applicant was satisfied with the sentence at the time of conviction and did not seek to obtain a copy of the judgment or initiate an appeal within the prescribed period. The subsequent realization, after three...
Source-derived case information.
- Citation
- [2019] KEHC 5894 (KLR)
- Parties
- Applicant: Paul Wambua Kiema; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 12 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- LN Mutende
- Legal Topics
- Extension of Time, Appeals, Sexual Offences, Sentencing, Custodial Sentences
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Wambua Kiema
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated good cause to warrant extension of time to file an appeal out of time.
- 2 Whether the delay in filing the appeal was occasioned by inability to obtain a copy of the judgment.
Ratio Decidendi
The court found that the applicant did not demonstrate good cause for the delay in filing the appeal. The applicant was satisfied with the sentence at the time of conviction and did not seek to obtain a copy of the judgment or initiate an appeal within the prescribed period. The subsequent realization, after three years, that he could appeal on the basis that time spent in custody was not considered, was not sufficient justification for extension of time. The court emphasized that the statutory requirement for good cause was not met, and mere change of mind after a prolonged period does not satisfy the threshold for granting leave to appeal out of time.
Court Disposition
application dismissed
Orders
- The application for leave to appeal out of time is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITUI
CRIMINAL MISC. APPLICATION NO. 12 OF 2019
PAUL WAMBUA KIEMA....................................APPLICANT
VERSUS
REPUBLIC........................................................RESPONDENT
R U L I N G
1. Paul Wambua Kiemawas convicted of the offence of Rapecontrary to Section 3(1)as read with Section 3(3)of the Sexual Offences Acton the 3rd June, 2016. He was sentenced to ten (10) years imprisonment.
2. Satisfied by the conviction and sentence meted out he opted not to appeal.
3. On the 25th February, 2019he filed a Notice of Motion seeking to appeal out of time on the ground that the Court delayed in providing him with a copy of the Judgment. However, at the hearing of the Application he stated that he never appealed at the outset because he was satisfied with the sentence meted out but he wished to appeal because the time he spent in custody during trial was not taken into consideration.
4. Section 349of the Criminal Procedure Codeprovides thus:
“An appeal shall be entered within fourteen days of the date of the order or sentence appealed against:
Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor.”
5. This is a matter where the Applicant did not seek to obtain a copy of the Judgment following contentment of Judgment of the trial Court which imposed the minimum sentence prescribed for the offence he committed. He has waited for three (3) years prior to remembering that he could be heard at an appellate stage. This does not amount to a good cause.
6. Therefore, the Application is not meritorious. Accordingly, it is dismissed.
7. It is so ordered.
Dated, Signedand Deliveredat Kituithis 13thday of June,2019.
L. N. MUTENDE
JUDGE