RKR v Republic (Criminal Application E187 of 2024) [2024] KECA 1787 (KLR) (6 December 2024) (Ruling)
Neutral citation:
[2024] KECA 1787 (KLR)
Republic of Kenya
Criminal Application E187 of 2024
PM Gachoka, JA
December 6, 2024
Between
RKR
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 Kericho (Muya, J.) delivered on 21st November 2017 in HCCRA No. 3 of 2016)
Ruling
1.The applicant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. After full trial, the appellant was convicted of the offence and sentenced to 20 years’ imprisonment. On appeal in HCCRA No. 3 of 2016, Muya, J. on 21st November 2017 upheld the conviction and affirmed the sentence. The applicant now seeks leave of this Court to appeal out of time against the conviction and sentence of the Kericho High Court in HCCRA No. 3 of 2016
2.The applicant is dissatisfied with the judgement of the first appellate court. He however failed to lodge his appeal in good time hence the present application. The application is supported by the applicant’s supporting affidavit, his memorandum of appeal, notice of appeal and the grounds of appeal. The main ground set out by the applicant is that he was not supplied with the judgment in good time to enable him file his appeal in time.
3.The respondent filed its written submissions dated 14th November 2024. Senior Assistant Director of Public Prosecutions Mr. Omutelema urged this Court to allow the application since the sentence meted out was lengthy.
4.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:
5.I have considered the reason advanced by the applicant, the respondent’s submissions and the law. 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 judgement 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. Consequently, I direct the applicant to file his notice of appeal within 7 days from today’s date. Thereafter, the record of appeal shall be filed within 30 days.
DATED AND DELIVERED AT NAKURU THIS 6TH DAY OF DECEMBER 2024.M. GACHOKA C.Arb, FCIArb.JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar