[2005] KEHC 92 (KLR)
The court found that the applicant acted promptly in seeking copies of the judgment and proceedings before the expiry of the appeal period. Upon receipt of the documents, the application for leave to appeal out of time was filed within seven days. The court held that there was no inordinate delay or evidence to...
Source-derived case information.
- Citation
- [2005] KEHC 92 (KLR)
- Parties
- Applicant: Republic; Respondent: Samson Karafa Kevolwe; Respondent: John Kavita Karafa
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 48 & 49 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- applications allowed; time for lodging appeal extended
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Acquittal Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samson Karafa Kevolwe
Respondent
John Kavita Karafa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant demonstrated sufficient cause for extension of time to file an appeal against the acquittal order.
- 2 Whether the delay in seeking leave to appeal out of time was inordinate or justified.
Ratio Decidendi
The court found that the applicant acted promptly in seeking copies of the judgment and proceedings before the expiry of the appeal period. Upon receipt of the documents, the application for leave to appeal out of time was filed within seven days. The court held that there was no inordinate delay or evidence to support the respondents' claim that the application was an afterthought or intended to punish them. Accordingly, the court exercised its discretion to allow the applications and extended the time for lodging the appeal, deeming the petitions of appeal as properly filed out of time with leave of court.
Court Disposition
applications allowed; time for lodging appeal extended
Orders
- Time for lodging appeal is extended to the date on which the applicant lodged the petitions of appeal (28.10.2004), which are deemed to have been filed out of time with leave of court.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Misc Crim Appli 48 & 49 of 2004 & 1289 of 2003
REPUBLIC ......................................................................................APPLICANT
versus
SAMSON KARAFA KEVOLWE.................................................RESPONDENT
AND
MISC CRIMINAL APPLICATION NO. 49 OF 2004
REPUBLIC.......................................................................................APPLICANT
Versus
JOHN KAVITA KARAFA...........................................................RESPONDENT
BOTH
FROM VIHIGA CRIMINAL CASE NO. 1289 OF 2003
REPUBLIC ......................................................................................APPLICANT
versus
SAMSON KALAFWA & JOHN KALAFWA ...........................RESPONDENT
RULING
The State filed two identical applications dated 22. 10. 2004 in each of which it sought leave to file appeal out of time from the order of acquittal of the two respondents made on 18. 8.04 in Vihiga Criminal case No. 1289 of 2003 by Mrs. R.A. Oganyo.
The affidavit of Mr. Daniel Karuri in support of the applications shows that the acquittal of the Respondents was on 18. 8.2004 and that application for copies of the judgment was made on 1. 9.2004. The lower court supplied the judgment and proceedings on 21. 10. 2004 by which time, time for lodging appeal had run out. The applications for leave to appeal out of time were filed on 28. 10. 2004. Both Respondents filed identical affidavits to the application. In their affidavits, the Respondents opposed the applications and submitted that the applications had been brought after unexplained undue delay.
Mr. Karuri, State counsel, who appeared for the Applicant at the hearing urged the court to grant the application as the delay was not inordinate. On his part, Mr. Nyanga, Advocate, who appeared for both Respondents submitted that the applications were an afterthought designed to punish the Respondents.
I have perused the applications and the supporting affidavits by Daniel I. Karuri, State counsel, as well as the affidavits of the Respondents. I have given due consideration to the submissions of Mr. Karuri, State counsel, and Mr. Nyanga, advocate for the Respondents. The application for judgment and proceedings was made on 1. 9.2004 just before the period for lodging appeal had run out. The lower court supplied the same on 21. 10. 2004. Within seven days of receipt of the judgment and proceedings the Applicant filed (on 28. 10. 2004) the application for leave. I have not seen any evidence to support the allegation by Mr. Nyanga that the application for leave is an afterthought or that it is intended to punish the Respondents.
In my view, there was no inordinate delay by the Applicant either in applying for the judgment or in applying for leave. In the circumstances, I allow the applications and order that the time for lodging appeal is extended to the date on which the Applicant lodged the Petitions of Appeal (on 28. 10. 2004) which are hereby deemed to have been filed out of time with the leave of court. It is so ordered.
Dated at Kakamega this 16th day of March 2005
G.B.M. KARIUKI
J U D G E