[2012] KEHC 519 (KLR)
The court found that the applicant made credible efforts to obtain the proceedings of the lower court and that the delay in filing the appeal was not due to negligence or inaction. Denying the applicant the opportunity to appeal would be contrary to the interests of justice, as every party is entitled to their day...
Source-derived case information.
- Citation
- [2012] KEHC 519 (KLR)
- Parties
- Applicant: Republic; Respondent: Jonathan Katana Kenga Gona
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 133 of 2012
- Procedural Posture
- Miscellaneous Criminal Application / Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Legal Topics
- Leave to Appeal Out of Time, Acquittal Review, Delay in Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Jonathan Katana Kenga Gona
Respondent
Procedural Posture
Miscellaneous Criminal Application / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against the acquittal of the respondent.
- 2 Whether the delay in filing the appeal was justified by the circumstances.
Ratio Decidendi
The court found that the applicant made credible efforts to obtain the proceedings of the lower court and that the delay in filing the appeal was not due to negligence or inaction. Denying the applicant the opportunity to appeal would be contrary to the interests of justice, as every party is entitled to their day in court. The court exercised its discretion to grant leave to appeal out of time, deeming the draft petition as duly filed and served.
Court Disposition
leave to appeal out of time granted
Orders
- Leave to file appeal out of time is granted as prayed.
- The draft petition is deemed as duly filed and served.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
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REPUBLIC …............................................................................ APPLICANT
VERSUS
JONATHAN KATANA KENGA GONA …........................... RESPONDENT
RULING
This application by way of a Notice of Motion is brought under section 348 and 349 of the Criminal Procedure Code and article 48, 5 (III) and 165 (3) of the Constitution of Kenya 2010.
This application seeks leave to appeal out of time.
The grounds are that the Respondent was wrongly acquitted by Kilifi Senior Resident Magistrate in SRMCC 546 of 2008 under section 210 of the Criminal Procedure Code and the appellant was not able to lodge his appeal within the stipulated period due to delay in obtaining copies of the proceedings.
This application is opposed on the grounds that the application is made two years after the ruling of Honorable P.M. Kiama acquitting the Respondent.
I have gone through the pleadings and the rival oral arguments before the Court and I am satisfied that the applicant had made credible efforts to obtain the proceedings of the lower Court. It would not serve the ends of Justice to shut the applicant from its appeal. Every party is entitled to its day in Court.
Leave to file appeal out of time is granted as prayed the draft petition is deemed as duly filed and served.
Ruling dated and delivered this 7th day of December, 2012.
.....................
M. MUYA
JUDGE
In the presence of:-
Miss Mwaura for the State
Respondent present in person
Court clerk – Musundi