[2021] KEHC 6222 (KLR)
The court found that the applicant's explanation for the delay—late receipt of proceedings—was plausible and understandable. The court held that the respondent would not suffer substantial prejudice apart from the issue of time, as she would still have an opportunity to defend herself in the intended appeal. The...
Source-derived case information.
- Citation
- [2021] KEHC 6222 (KLR)
- Parties
- Applicant: Republic; Respondent: Jesister Kerubo Matunda
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 46 of 2020
- Procedural Posture
- Miscellaneous Criminal Application / Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- HK Chemitei
- Legal Topics
- Leave to Appeal Out of Time, Criminal Appeals, Procedural Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Jesister Kerubo Matunda
Respondent
Procedural Posture
Miscellaneous Criminal Application / 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 granting leave to appeal out of time would prejudice the respondent.
Ratio Decidendi
The court found that the applicant's explanation for the delay—late receipt of proceedings—was plausible and understandable. The court held that the respondent would not suffer substantial prejudice apart from the issue of time, as she would still have an opportunity to defend herself in the intended appeal. The merits of the intended appeal were not considered at this stage, as that is reserved for the appellate process. Accordingly, the court exercised its discretion to allow the application and granted the applicant 14 days to file and serve the petition of appeal.
Court Disposition
application allowed
Orders
- The applicant is granted 14 days from the date of the ruling to file and serve its petition of appeal.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
MISC. CRIMINAL APPLICATION NO. 46 OF 2020.
REPUBLIC........................................................................APPLICANT
VERSUS
JESISTER KERUBO MATUNDA.............................RESPONDENT
JUDGEMENT.
1. This is an application dated 6th February 2020 by the applicant seeking under Section 349 of the Criminal Procedure Code to file an appeal out of time. The same is supported by the sworn affidavit of Daniel Karuri the senior assistant director of public prosecutions.
2. He alleges that the state was unable to file the appeal within time as they received the proceedings after the expiry of 14 days and that their efforts to have their matter reviewed was dismissed by this court. Consequently, they have been forced to file this application.
3. The respondent though acting in person has filed an objection which essentially is reiterating some of the issues she raised or would have raised in her defence. She urges the court to dismiss the application.
4. The issue is whether there would be any prejudice to be suffered by any of the parties should this application allowed. The reasons given by the applicant appears plausible and understandable. The respondent would only suffer the issue of time but would nevertheless have an opportunity to defend herself in the intended appeal.
5. This court for now is precluded from venturing into the merits or otherwise of the appeal as that is reserved for another day.
6. In the premises, the application is allowed, the applicant is granted 14 days from the date herein to file and serve its petition of appeal.
DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 17TH DAY OF JUNE 2021.
H. K. CHEMITEI
JUDGE