[2016] KEHC 50 (KLR)
The court found that the applicant had provided plausible reasons for the delay in filing the appeal and that there would be no prejudice or injustice to the respondent if the application was allowed. The court exercised its discretion to grant leave, taking into account the applicant's right to a fair trial and to...
Source-derived case information.
- Citation
- [2016] KEHC 50 (KLR)
- Parties
- Applicant: Peter Muasya Mbaku; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 14 of 2016
- Procedural Posture
- Criminal Appeal / Application for Leave to File Appeal Out of Time
- Outcome
- application allowed
- Judges
- DB Nyakundi
- Legal Topics
- Appeal Out of Time, Sentencing, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Muasya Mbaku
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against conviction and sentence.
- 2 Whether the delay in filing the appeal was sufficiently explained to warrant the court's discretion.
- 3 Whether granting the application would prejudice the respondent.
Ratio Decidendi
The court found that the applicant had provided plausible reasons for the delay in filing the appeal and that there would be no prejudice or injustice to the respondent if the application was allowed. The court exercised its discretion to grant leave, taking into account the applicant's right to a fair trial and to challenge his conviction and sentence, as well as the absence of opposition from the respondent. The court further noted the seriousness of the sentence imposed and the constitutional guarantees of fair trial and liberty.
Court Disposition
application allowed
Orders
- The application to file the appeal out of time is allowed.
- The memorandum of appeal filed is deemed as properly filed within time.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAJIADO
CRIMINAL APPEAL NO. 14 OF 2016
PETER MUASYA MBAKU.......APPLICANT
Versus
REPUBLIC...........................RESPONDENT
RULING
The applicant was tried by the Chief Magistrate’s Court Kajiado for the offence of attempted defilement contrary to section 9 (1) of the Sexual Offences Act. The trial magistrate convicted the applicant and sentenced him to ten (10) years imprisonment.
The applicant being dissatisfied with the decision of the trial court intends to challenge both conviction and sentence as deemed from the draft memorandum of appeal. In the chamber summons filed before this court and attached supporting affidavit he was not able to file the appeal within the stipulated period of fourteen (14) days as provided for under Section 349 of the Criminal Procedure Code. In the application he seeks an order of this court to file the appeal out of time.
I have considered the application together with affidavit. The application is not opposed. The applicant has indicated that the intended appeal has high chances of success. The reasons for the delay have been explained and this court finds it plausible to persuade this court exercise discretion. There would be no prejudice nor injustices occasioned to the other party if these orders are granted in favour of the appellant.
I take cognizance that the applicant has been sentenced to long term sentence which he intends to contest in the proposed appeal. I find no good reasons not to allow the application to enable applicant canvass his appeal to the High Court under Section 347 (2) an appeal to the High Court may be on a matter of fact as well as matter of law. This court also takes cognizance of the fundamental rights guaranteed in our constitution. Central to this being right to a fair trial under Article 50 of the Constitution, right to liberty of the applicant. There is no prejudice occasioned if the applicant was to be allowed to challenge the decision of the trial court.
For these reasons the following orders shall abide:
1. The application to file the appeal out of time allowed.
2. The memorandum of appeal filed be deemed as properly filed within time.
3. The Deputy Registrar do cause the proceedings of the lower court to be typed and served upon the applicant within 30 days from today’s date
4. Further mention on 7/9/2016 before the Deputy Registrar to monitor compliance with the order.
It is so ordered.
Dated, delivered in open court at Kajiado on 21st day of July, 2016.
…………………………………..
R. NYAKUNDI
JUDGE
Representation:
Applicant – present
Mr. Akula for Director of Public Prosecutions
Mateli Court Assistant