[2004] KEHC 480 (KLR)
The court found that the applicant failed to provide sufficient reason for the delay in filing the appeal out of time. The proceedings were certified on 11.8.2003, nearly three weeks after judgment, but the applicant did not provide evidence of seeking the proceedings after certification or a certificate of delay....
Source-derived case information.
- Citation
- [2004] KEHC 480 (KLR)
- Parties
- Applicant: Stephen Mbinda Ngemu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 8 of 2004
- Procedural Posture
- Criminal Application / Ruling on Application for Leave to File Appeal Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Leave to Appeal Out of Time, Delay in Filing Appeal, Certificate of Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mbinda Ngemu
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reason for the delay in filing the appeal out of time.
- 2 Whether the absence of a certificate of delay or evidence of follow-up on proceedings justifies refusal of leave.
Ratio Decidendi
The court found that the applicant failed to provide sufficient reason for the delay in filing the appeal out of time. The proceedings were certified on 11.8.2003, nearly three weeks after judgment, but the applicant did not provide evidence of seeking the proceedings after certification or a certificate of delay. The absence of these documents made it impossible for the court to determine the actual period of delay attributable to the court. The affidavit by counsel regarding receipt of proceedings was deemed unreliable, as it was possible counsel collected the proceedings at his own convenience. Consequently, the court held that the delay was inordinate and unjustified, and dismissed...
Court Disposition
application dismissed with costs
Orders
- The application for leave to file appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS CRIMINAL APPLICATION NO. 8 OF 2004
STEPHEN MBINDA NGEMU…………………….APPLICANT
VERSUSREPUBLIC…………………………………….RESPONDENT
R U L I N G
In the application dated 25. 2.2004 the applicant prays that the court do grant him leave to file appeal against the judgement of Senior Resident Magistrate Yatta in TR 474/01 out of time.
The application is supported by the affidavit of C. K. Mwihia advocate who depones that he applied for copy of proceedings soon after the judgement on 31. 7.2003 as per annexture CKM I but the same were not ready till 20. 2.2004 by which time, time for filing appeal had lapsed and that is why he filed this application.
The application was opposed on grounds that no sufficient reason has been given for the delay.
I do note that the proceedings of the lower court were certified on 11. 8.2003. Nearly 3 weeks after the judgement was delivered. There is no evidence that the applicant sought these proceedings after the said certification. Normally the court will issue a certificate of delay. For some reason the applicant has ignored to annex it. It is only that certificate that can show how long the delay that was occasioned by the court was. Further, the applicant has failed to annex the letter of the court forwarding the proceedings to counsel.I believe these documents were not annexed for reasons best known to applicant. That is, so that the court cannot tell when exactly the proceedings were ready and forwarded.
The affidavit by counsel regarding when he received the proceedings from the lower court is neither here nor there. He may have opted to collect them at his own convenience. The record speaks for itself.
I do agree with respondent that no sufficient reason has been given for the delay. The delay is inordinate bearing in mind that the proceedings were certified as early as 11. 8.2003. The application lacks merit and it is dismissed with costs.
Dated, read and delivered at Machakos this………………..day of………………………,2004.
R. WENDOH JUDGE