[2012] KEHC 1280 (KLR)
The court found that the delay in filing the appeal was satisfactorily explained by the applicant, as the proceedings necessary for the appeal were not availed in good time despite prompt payment and request. The complainant's subsequent actions in seeking legal advice and approaching the Director of Public...
Source-derived case information.
- Citation
- [2012] KEHC 1280 (KLR)
- Parties
- Applicant: Director of Public Prosecutions; Respondent: Faraj Nyatundo
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 26 of 2012
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- AO Muchelule
- Legal Topics
- Leave to Appeal Out of Time, Acquittal Under Section 210, Delay in Filing Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Director of Public Prosecutions
Applicant
Faraj Nyatundo
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether sufficient cause was shown to warrant extension of time to file an appeal against the acquittal of the respondent.
- 2 Whether the delay in filing the appeal was inordinate or excusable.
Ratio Decidendi
The court found that the delay in filing the appeal was satisfactorily explained by the applicant, as the proceedings necessary for the appeal were not availed in good time despite prompt payment and request. The complainant's subsequent actions in seeking legal advice and approaching the Director of Public Prosecutions were reasonable under the circumstances. The court held that the delay was neither long nor inordinate and that sufficient cause had been shown to warrant extension of time. Consequently, the application for leave to file the appeal out of time was allowed.
Court Disposition
application allowed
Orders
- The chamber application for extension of time to file an appeal is allowed.
- The appeal shall be filed within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
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REPUBLIC...............................................................................APPLICANT
~VERSUS~
FARAJ NYATUNDO...........................................................RESPONDENT
RULING
The Director of Public Prosecutions wishes to appeal the decision of the subordinate court to acquit the Respondent under section 210 of the Criminal Procedure Code on a charge of stealing contrary to section 275 of the Penal Code and the alternative charge of handling suspected stolen property contrary to section 323 of the Penal Code. The acquittal followed various adjournment requests by the prosecution whose witnesses were not being availed. When the last request was denied and the prosecution had no witness the court made the order.
The order subject of the appeal was made on 3/4/2012 and the application was made on 8/5/2012. It is evident that, considering that an appeal ought to have been filed within 14 days, the delay was for less than a month. It was explained that on 11/4/2012 the complainant sought copies of proceedings and paid for the same. They were not availed until 24/4/2012. The complainant then went to an advocate who advised him to seek an appeal through the Director of Public Prosecutions. In the meantime, time had run out.
I have looked at the replying affidavit by the Respondent. He basically supports the court’s decision to acquit him. The merits of the decision will be the subject of the appeal.
I have found there are sufficient reasons that made the Director of Public Prosecutions to be caught up with time. In any case, the delay was neither long nor inordinate. I allow the chamber application and ask that the appeal be filed in 14 days.
Dated, signed and delivered at Bungoma this 17th day of October, 2012.
A.O. MUCHELULE
JUDGE