[2024] KECA 1787 (KLR)
The Court found that although the delay of seven years in filing the appeal was inordinate, the applicant, who is in prison, was not supplied with the judgment in good time, and this contention was not disputed by the respondent. The respondent also conceded to the application. In the interest of justice and...
Source-derived case information.
- Citation
- [2024] KECA 1787 (KLR)
- Parties
- Applicant: RKR; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E187 of 2024
- Procedural Posture
- Criminal Application / Application for Leave to Appeal Out of Time
- Outcome
- Application allowed.
- Judges
- PM Gachoka
- Legal Topics
- Leave to Appeal Out of Time, Defilement Offence, Conviction and Sentence, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
RKR
Applicant
Republic
Respondent
Procedural Posture
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 the delay of seven years is inordinate and if it can be excused in the interest of justice.
- 3 Whether the respondent will suffer prejudice if leave is granted.
Ratio Decidendi
The Court found that although the delay of seven years in filing the appeal was inordinate, the applicant, who is in prison, was not supplied with the judgment in good time, and this contention was not disputed by the respondent. The respondent also conceded to the application. In the interest of justice and considering the reasons advanced by the applicant and the respondent's concession, the Court exercised its discretion to allow the application for leave to appeal out of time. The applicant was directed to file the notice of appeal within 7 days and the record of appeal within 30 days thereafter.
Court Disposition
Application allowed.
Orders
- The applicant shall file his notice of appeal within 7 days from the date of this ruling.
- The record of appeal shall be filed within 30 days thereafter.
Full Case Text
Judgment text and source record
20 paragraphs
RKR v Republic (Criminal Application E187 of 2024) [2024] KECA 1787 (KLR) (6 December 2024) (Ruling)
Neutral citation: [2024] KECA 1787 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E187 of 2024
PM Gachoka, JA
December 6, 2024
Between
RKR
Applicant
and
Republic
Respondent
(An application for leave to appeal out of time against the conviction and sentence of the High Court of Kenya at Kericho (Muya, J.) delivered on 21st November 2017 in HCCRA No. 3 of 2016)
Ruling
1. The applicant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. After full trial, the appellant was convicted of the offence and sentenced to 20 years’ imprisonment. On appeal in HCCRA No. 3 of 2016, Muya, J. on 21st November 2017 upheld the conviction and affirmed the sentence. The applicant now seeks leave of this Court to appeal out of time against the conviction and sentence of the Kericho High Court in HCCRA No. 3 of 2016
2. The applicant is dissatisfied with the judgement of the first appellate court. He however failed to lodge his appeal in good time hence the present application. The application is supported by the applicant’s supporting affidavit, his memorandum of appeal, notice of appeal and the grounds of appeal. The main ground set out by the applicant is that he was not supplied with the judgment in good time to enable him file his appeal in time.
3. The respondent filed its written submissions dated 14th November 2024. Senior Assistant Director of Public Prosecutions Mr. Omutelema urged this Court to allow the application since the sentence meted out was lengthy.
4. The discretion in rule 4 of the Court of Appeal Rules 2022 is wide and unfettered. This Court in Wasike vs. Swala [1984] KLR 591 stated:“As Rule 4 now provides that the Court may extend the time or such terms as it thinks just, an applicant must now show, in descending scale of importance, the following factors:a.That there is merit in his appeal.b.That the extension of time to institute and/or file the appeal will not cause undue prejudice to the respondent; andc.That the delay has not been inordinate.” 5. I have considered the reason advanced by the applicant, the respondent’s submissions and the law. I note that a period of seven years has lapsed since the impugned judgment was delivered. That delay is indeed inordinate. The applicant, who is in prison states that he was not supplied with the judgement and this contention is not disputed. Therefore, in the interest of justice and on account of the reason advanced by the applicant, coupled with the respondent’s concession, I am compelled to allow the application. Consequently, I direct the applicant to file his notice of appeal within 7 days from today’s date. Thereafter, the record of appeal shall be filed within 30 days.
DATED AND DELIVERED AT NAKURU THIS 6TH DAY OF DECEMBER 2024. M. GACHOKA C.Arb, FCIArb.JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar