[2015] KEHC 3159 (KLR)
The court found that the delay in filing the appeal was not inordinate and was satisfactorily explained by the applicant's need to obtain typed proceedings and further information from the police to form an opinion on whether to appeal. The court interpreted Section 349 of the Criminal Procedure Code as not limiting...
Source-derived case information.
- Citation
- [2015] KEHC 3159 (KLR)
- Parties
- Applicant: Republic; Respondent: Ernest Walunywa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 62 of 2014
- Procedural Posture
- Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Leave to Appeal Out of Time, Delay in Filing Appeal, Requirements for Appeal Admission
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Ernest Walunywa
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion to allow the appeal to be filed out of time.
Ratio Decidendi
The court found that the delay in filing the appeal was not inordinate and was satisfactorily explained by the applicant's need to obtain typed proceedings and further information from the police to form an opinion on whether to appeal. The court interpreted Section 349 of the Criminal Procedure Code as not limiting the necessary documents to only the judgment, order, and record, and accepted that the information sought was necessary for the State Counsel's decision-making. Consequently, the court exercised its discretion to allow the application and granted leave to file the appeal out of time.
Court Disposition
application allowed
Orders
- The applicant is granted leave to file the appeal out of time.
- The appeal shall be filed within seven (7) days from the date of this ruling.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL CASE NO. 62 OF 2014.
REPUBLIC ...................................................................... APPLICANT
VERSUS
ERNEST WALUNYWA ….......................................... RESPONDENT
RULING.
1. The Director of Public Prosecutions (DPP) filed a notice of motion on the 23rd of October 2014 seeking to file an appeal out of time. The application is supported by the affidavit of Jesse Kamau Kiragu. The reason given on the face of the application that caused the delay is failure to get typed proceedings on time.
In the supporting affidavit Mr. Kamau states that on seeing the typed proceedings he formed an opinion that the alibi defence was an afterthought and started the process of obtaining necessary information.
2. The application is opposed on the ground that the proceedings were obtained on good time and reasons given cannot sustain the application and indeed an appeal.
3. I have considered the application and the rival arguments adduced. At this stage the concern of the court is whether or not there is good case to admit the appeal out of time. The State Counsel states in his affidavit that there was need to study the court record hence that need for court proceeding and to seek further information from the police in order to make a decision whether to prefer the appeal or not.
4. My reading of section 349 of the Criminal Procedure does not limit necessary documents to only a copy of the judgment, order and record. The information that was being sought for on the state counsel was necessary for purpose of forming an opinion. It took a month to obtain the same. This is a fairly good reason for the delay herein. The delay is not inordinate. In the circumstances the application is allowed.
The appeal be filed within the next seven (7) days of the date hereof.
Dated at Bungoma this 17th day of March 2015.
ALI ARONI
JUDGE.