Automated Summary
Key Facts
The applicant was convicted of defilement under the Sexual Offences Act and sentenced to 20 years' imprisonment in 2017. His appeal to the first appellate court was upheld, but he failed to file a timely appeal to the Court of Appeal. The applicant claims he was not provided with the judgment in time to meet filing deadlines. The Court of Appeal ruled that the seven-year delay was inordinate but allowed the application for leave to appeal out of time, granting the applicant 7 days to file his notice of appeal and 30 days to file the record of appeal.
Issues
The court addressed the application for leave to appeal out of time against a 2017 conviction and sentence. The applicant claimed he was not supplied with the judgment in time to file an appeal. The court considered whether the seven-year delay was inordinate, the merit of the appeal, and the respondent's concession. It concluded that the delay was inordinate but granted leave in the interest of justice, citing the undisputed contention and the respondent's concession.
Holdings
The Court of Appeal allowed the application for leave to appeal out of time against the 2017 conviction and sentence for defilement. The applicant, currently in prison, argued he was not supplied with the judgment in time to file an appeal. The court acknowledged a seven-year delay as inordinate but granted leave in the interest of justice, citing the respondent's concession and the applicant's unchallenged claim. The applicant was directed to file his notice of appeal within 7 days and the record of appeal within 30 days.
Remedies
- Leave to appeal out of time against the conviction and sentence of the Kericho High Court in HCCRA No. 3 of 2016 was granted by the Court of Appeal.
- The record of appeal was required to be filed within 30 days after the notice of appeal deadline.
- The applicant was directed to file his notice of appeal within 7 days from the date of this ruling (6th December 2024).
Legal Principles
The court applied Rule 4 of the Court of Appeal Rules 2022, emphasizing the need to show (a) merit in the appeal, (b) no undue prejudice to the respondent, and (c) that the delay was not inordinate. These factors were central to the court's discretion in granting leave to appeal out of time.
Precedent Name
Wasike vs. Swala
Cited Statute
- Sexual Offences Act
- Court of Appeal Rules 2022
Judge Name
M. Gachoka
Passage Text
- 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 judgment 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.
- 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; and c. That the delay has not been inordinate.'