[2025] KEHC 3056 (KLR)
The court found that the applicant had satisfactorily explained the delay in filing the appeal, attributing it to the disruptions caused by the coronavirus pandemic. The respondent did not oppose the application for leave to appeal out of time. In the interest of justice, the court allowed the application. However,...
Source-derived case information.
- Citation
- [2025] KEHC 3056 (KLR)
- Parties
- Applicant: Daniel Ngige Waithera; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application E062 of 2024
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application for leave to appeal out of time allowed; petition of appeal cannot be sustained in the same folder due to procedural error; further directions to be given.
- Judges
- PN Gichohi
- Legal Topics
- Leave to Appeal Out of Time, Conviction and Sentence Appeal, Procedural Irregularity, Delay Explanation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Ngige Waithera
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the appeal out of time.
- 2 Whether the court should grant leave to appeal out of time in the interest of justice.
- 3 Whether the procedural error in assigning the same case number to both the application and the petition of appeal affects the sustainability of the petition.
Ratio Decidendi
The court found that the applicant had satisfactorily explained the delay in filing the appeal, attributing it to the disruptions caused by the coronavirus pandemic. The respondent did not oppose the application for leave to appeal out of time. In the interest of justice, the court allowed the application. However, due to a procedural error in the registry, where both the miscellaneous application and the petition of appeal were assigned the same case number, the court held that the petition of appeal could not be sustained in the same folder as the miscellaneous application. The court directed that further directions would be given on the matter.
Court Disposition
Application for leave to appeal out of time allowed; petition of appeal cannot be sustained in the same folder due to procedural error; further directions to be given.
Orders
- Notice of Motion dated 16/5/2024 is allowed; leave to appeal out of time is granted to the applicant.
- The petition of appeal cannot be sustained in the folder containing the miscellaneous application due to registry error.
Full Case Text
Judgment text and source record
29 paragraphs
Waithera v Republic (Criminal Miscellaneous Application E062 of 2024) [2025] KEHC 3056 (KLR) (18 March 2025) (Ruling)
Neutral citation: [2025] KEHC 3056 (KLR)
Republic of Kenya
In the High Court at Nakuru
Criminal Miscellaneous Application E062 of 2024
PN Gichohi, J
March 18, 2025
Between
Daniel Ngige Waithera
Applicant
and
Republic
Respondent
Ruling
1. It has transpired that the Applicant herein moved this Court by way of a Notice of Motion dated 16/5/2024 seeking leave to appeal out of time.
2. Simultaneously he filed a Petition of Appeal dated 16/5/2024 against both conviction and sentence from Criminal case No. 133 of 2021 Nakuru Magistrate Court.
3. Consequently, High Court Registry opened a folder for Miscellaneous Criminal Application No. E062 of 2024.
4. The same Registry still gave the same No. E062 of 2024 to Petition of Appeal. That was done manually yet that should not have been the case.
5. Consequently, the Applicant applied for typed proceedings and Judgment to enable him make up his mind on the matter.
6. When he appeared before Court today, he still maintained that he had not received the certified copy of proceedings and Judgment as ordered by Court.
7. However, the Respondent informed this Court that he received his copy of Record of Appeal.
8. Further he stated that the Applicant had filed a Miscellaneous Application and a Petition of Appeal at the same time. He sought time to respond to both.
9. The Applicant responded that he was dissatisfied with the conviction and sentence of 20 years imprisonment but got late in filing the Appeal as that was during corona virus pandemic period and that is why he is seeking leave to appeal out of time.
10. The Respondent through Mr Kihara has indicated that he has no objection to the Applicant’s application for leave to appeal out of time.
11. This Court has considered the explanation for delay as stated by the Applicant and he has done so satisfactorily. In the interest of justice, the Notice of Motion dated 16/5/2024 is allowed.
12. Due to the error that occurred during registration of the application and the Petition of Appeal thereby giving both same registration number, the Petition of Appeal cannot be sustained in this folder containing the Miscellaneous Application.
13. That is despite the same having been duly served on the Respondent and the Lower Court file having been placed in this Criminal Miscellaneous Application E062 of 2024 folder.
14. Further directions on 3/4/2025.
DATED, SIGNED AND DELIVERED AT NAKURU THIS 18TH DAY OF MARCH, 2025. PATRICIA GICHOHIJUDGEIn the presence of:Daniel Ngige Waithera – ApplicantMr. Kihara for the RespondentRuto, Court Assistant