[2025] KECA 372 (KLR)
The Court found that the applicant had provided a satisfactory explanation for the delay in filing the appeal, namely, the late supply of the judgment and failed efforts to secure legal representation. The respondent did not oppose the application, and the sentence imposed was lengthy. Considering the guiding...
Source-derived case information.
- Citation
- [2025] KECA 372 (KLR)
- Parties
- Applicant: Samuel Boshi Waweru; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E237 of 2024
- Procedural Posture
- Criminal Application / Ruling on 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, Court of Appeal Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samuel Boshi Waweru
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Leave to 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 Court should exercise its discretion to grant leave to appeal out of time against conviction and sentence.
Ratio Decidendi
The Court found that the applicant had provided a satisfactory explanation for the delay in filing the appeal, namely, the late supply of the judgment and failed efforts to secure legal representation. The respondent did not oppose the application, and the sentence imposed was lengthy. Considering the guiding principles for extension of time, including the length and reasons for delay, absence of prejudice to the respondent, and the interests of justice, the Court exercised its discretion to allow the application. The applicant was granted leave to file the notice of appeal within 14 days and the record of appeal within 45 days thereafter.
Court Disposition
Application allowed.
Orders
- The applicant shall file his notice of appeal within 14 days from the date of this order.
- The record of appeal shall be filed and served within 45 days thereafter.
Full Case Text
Judgment text and source record
22 paragraphs
Waweru v Republic (Criminal Application E237 of 2024) [2025] KECA 372 (KLR) (28 February 2025) (Ruling)
Neutral citation: [2025] KECA 372 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E237 of 2024
PM Gachoka, JA
February 28, 2025
Between
Samuel Boshi Waweru
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 Naivasha (Nzioka, J.) delivered on 30th August 2023 in HCCRA No. E053 of 2022 Criminal Appeal 53 of 2022 )
Ruling
1. In his Notice of Motion dated 13th November 2024, the applicant seeks leave of this Court to appeal out of time from the conviction and sentence of the Naivasha High Court in HCCRA No E053 of 2022. The applicant was charged in Naivasha CM (SO) Case No E021 of 2021 with the offence of defilement contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act. The trial court convicted him of the offence and was sentenced to life imprisonment. The appellant appealed before the Naivasha High Court. In her judgment dated 30th August 2023, Nzioka, J. dismissed his appeal on conviction and sentence.
2. The applicant is aggrieved. In support of his application, the applicant has attached his supporting affidavit, memorandum of appeal and notice of appeal all dated 13th November 2024. He urged this Court to allow his application for the reason that he was not supplied with a copy of the judgment in good time.
3. The appeal was canvassed on the basis of the parties diametrically opposed written submissions. The appellant’s written submissions dated 4th October 2024 argued that his application was merited for the following reasons: the application was properly anchored on the provisions of Articles 22, 50 (2) (p) of the Constitution, rule 4 of the Court of Appeal rules and section 379 of the Criminal Procedure Code and; he did not appeal on time on account of the fact that his relatives promised to secure the services of a legal representative but the same did not materialize.
4. In the respondent’s written submissions dated 3rd January 2025, Senior Assistant Director of Public Prosecutions Mr. Omutelema acting for the state observed that though the application was filed with inordinate delay, he did not oppose the application as the sentence meted out was lengthy.
5. The discretion set out in rule 4 of the Court of Appeal Rules 2022 is wide and discretionary. The guiding principles are not exhaustive. However, the Court is urged to take into account the length of delay involved, the reasons for delay, possible prejudice on any party, the conduct of the parties, the need to balance competing interests, the need to protect a party’s opportunity to fully litigate his or her dispute, and the chances of succeeding.
6. I have considered the reason advanced by the applicant, the period of delay, the respondent’s submissions and the law. I am satisfied that the application has met the threshold for the exercise of discretion by this Court. Consequently, the applicant shall file his notice of appeal within 14 days from the date of this order. Thereafter, the record of appeal shall be filed and served within 45 days.
DATED AND DELIVERED AT NAKURU THIS 28TH DAY OF FEBRUARY 2025. M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR