[2016] KEHC 85 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in filing his appeal, namely, the inability of his family to raise funds to retain an advocate within the statutory period. The respondent did not oppose the application. Considering the provisions of Section 349 of the Criminal...
Source-derived case information.
- Citation
- [2016] KEHC 85 (KLR)
- Parties
- Applicant: Wilson Mulwa Wambua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 4 of 2016
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- DB Nyakundi
- Legal Topics
- Leave to Appeal Out of Time, Criminal Appeals, Sentencing, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Mulwa Wambua
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against conviction and sentence.
- 2 Whether the applicant has provided sufficient explanation for the delay in filing the appeal.
- 3 Whether the right to a fair trial under Article 50 of the Constitution is implicated.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in filing his appeal, namely, the inability of his family to raise funds to retain an advocate within the statutory period. The respondent did not oppose the application. Considering the provisions of Section 349 of the Criminal Procedure Code, which allows the court to enlarge time for appeal, and Article 50 of the Constitution guaranteeing the right to a fair trial, the court exercised its discretion in favour of the applicant. The court allowed the application, permitting the applicant to file his appeal out of time and deeming the draft memorandum of appeal as properly filed.
Court Disposition
application allowed
Orders
- The applicant is granted leave to file his appeal out of time.
- The memorandum of appeal filed is deemed as properly filed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAJIADO
CRIMINAL MISC. APPLICATION NO. 4 OF 2016
WILSON MULWA WAMBUA…………..……….............APPLICANT
Versus
REPUBLIC………………………………………..…...RESPONDENT
RULING
WILSON MULWA WAMBUA hereinafter refered as the applicant moved this court by way of chamber summons dated 3/3/2016 seeking the following order:
That this court be pleased to grant leave to file his appeal out of time.
The application is supported by his own affidavit and premised on the following grounds:
That he was tried and convicted of gang rape contrary to section 10 (1) of the Sexual Offences Act. The trial magistrate sentenced him to 15 years imprisonment.
He was dissatisfied with the decision of the learned trial magistrate as set out in the memorandum of appeal. He avers in the application and affidavit that his family members promised to file an appeal. That the family was unable to raise the fees to retain an advocate and the time set out in the law expired. Mr. Akula for the respondent did not object to the application.
The Law
Appeals to the court are governed by the provisions of Part XI of the Criminal Procedure Code, Section 349 provides for limitation of time of appeal to be fourteen days against the decision of the subordinate court. However there is a proviso where the appeal court can exercise discretion to enlarge time.
DETERMINATION
I have considered the application, affidavit in support and attached draft memorandum of appeal. The inability by the applicant to file appeal within time has been explained.
Taking all factors into account and the provisions of Article 50 of the Constitution, right to a fair trial I make the following orders:
1. That the applicant be allowed to file his appeal out of time. This court exercises discretion to enlarge time in favour of the applicant.
2. That the memorandum of appeal filled be deemed as properly filed.
3. The Deputy Registrar to prepare the record and have it served upon the applicant within 30 days from today’s date.
4. Further mention on 7/9/2016 before the Deputy Registrar to monitor compliance with the order
It is so ordered.
Dated, delivered in open court at Kajiado on 21st day of July, 2016.
…………………
R. NYAKUNDI
JUDGE
Representation:
Applicant – present
Mr. Akula for Director of Public Prosecutions
Mateli Court Assistant