[2018] KEHC 8614 (KLR)
The court found that the applicant's explanation for the delay—alleged filing problems between the Prisons Documentation Office and the Court's registry—was not credible, especially given the inordinate delay of six years and six months. The applicant failed to provide any documentary evidence to support his claim...
Source-derived case information.
- Citation
- [2018] KEHC 8614 (KLR)
- Parties
- Applicant: Peter Kimathi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Judgment Date
- 24 January 2018
- Case Number
- Miscellaneous Criminal Application 47 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- A Mabeya
- Legal Topics
- Leave to Appeal Out of Time, Delay in Filing Appeal, Conviction for Murder
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kimathi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient and credible reasons for the inordinate delay in filing the appeal out of time.
- 2 Whether leave to appeal out of time should be granted in the circumstances.
Ratio Decidendi
The court found that the applicant's explanation for the delay—alleged filing problems between the Prisons Documentation Office and the Court's registry—was not credible, especially given the inordinate delay of six years and six months. The applicant failed to provide any documentary evidence to support his claim of a filing problem. The court concluded that the applicant must have been satisfied with the High Court's decision and only sought to appeal after an unreasonable period had lapsed. The seriousness of the sentence was not sufficient justification for the delay, as the applicant could have exercised his right to appeal much earlier if he was genuinely aggrieved. Consequently,...
Court Disposition
application dismissed
Orders
- Leave to appeal out of time is denied.
- The application is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
MISC. CRIMINAL APPLICATION CASE NO. 47 OF 2017
PETER KIMATHI .………………………………….…………..APPLICANT
VERSUS
REPUBLIC ……………………….…………….…………… RESPONDENT
RULING
1. PETER KIMATHI has applied for leave to appeal out of time. He is aggrieved against the judgment of this Court (Hon. Lesiit J.) made on 12th May, 2011 whereby the applicant was convicted of the offence of murder contrary to Section 203 as read with section 204 o the Penal Code.
2. The time for appealing expired on 26th May, 2011. The application was lodged on 2nd December, 2017. There is therefore a delay of six (6) years and six (6) months. That is in all circumstances, inordinate.
3. The reasons advanced for the delay is that there occurred a filing problem between the Prisons Documentation Office and this Court’s registry whereby he was unable to lodge his appeal in time. The applicant has contended that the intended appeal has overwhelming chances of success.
4. Having considered the case in its entirety, I do not find the reasons advanced for the delay to be credible. While it is not farfetched that, in the normal course of events, there can be breakdown of communication between this Court’s registry and the Prisons Department wherein the applicant is being held. Six and a half years is a long period for the applicant to wait to discover that his appeal has not been lodged. No copy of any such document was provided. The conclusion I make is that the applicant must have been satisfied with the decision of the High Court and decided not to appeal. To my mind, that is a plausible explanation.
5. I have considered the long sentence or the serious sentence that was metted out to him. Be that as it may, I am of the view that if he had considered it to be such serious, he would have exercised his right to appeal in less than, say, three years.
6. Accordingly, leave is denied and the application dismissed.
DATED and DELIVERED at MERU this 24th day of January, 2018.
A. MABEYA
JUDGE