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Court of AppealPartially AllowedCriminal Application (Court of Appeal, Nairobi)· [2023] KECA 623 (KLR)

Mucheru & another v Republic (Criminal Appeal (Application) 99 of 2021) [2023] KECA 623 (KLR)

Court of Appeal of Kenya
26 May 2023
SKS. Ole Kantai
1,014 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a murder convict a second chance to lodge her appeal on time, showing delays can be excused when justified and nobody is prejudiced.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by S. Ole Kantai, JA, on May 26, 2023, on a Motion brought by Jane Muthoni Mucheru and Isaack Nganga Wambui under Sections 3 and 3A of the Appellate Jurisdiction Act and Rules 4, 41, 42 and 47 of the Court of Appeal Rules, 2010. The applicants, convicted of murder by Joel Ngugi, J on April 22, 2021 and sentenced on June 3, 2021 to 30 years imprisonment, sought extension of time to file the 1st applicant's Notice of Appeal, deeming of that Notice and the Memorandum of Appeal as duly filed, and an order that their appeals be heard together. The 2nd applicant's Notice of Appeal was filed within time; the 1st applicant, who terminated her trial counsel after sentencing and only instructed pro bono counsel in February 2022, filed hers out of time. The respondent filed no replying affidavit despite service. Relying on the settled Rule 4 principles, the judge found no inordinate delay, held the draft grounds arguable, and found no prejudice to the respondent. The application for extension of time was allowed, with the 1st applicant given 14 days to file the Notice of Appeal and a further 14 days for the Memorandum of Appeal; consolidation of the appeals was left to a future application. No costs order was made. The underlying murder conviction and sentence remain undisturbed.

Key legal issues

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01

Extension of time to file a Notice of Appeal out of time under Rule 4

Holding

The application satisfied the Rule 4 principles: there was no inordinate delay, the proposed grounds were arguable, and the respondent would suffer no prejudice; extension was granted.

Reasoning

The 1st applicant filed an undated Notice of Appeal out of time after terminating her trial counsel; the 2nd applicant's Notice was lodged within time. A new advocate on pro bono basis explained the delay. The grounds in the draft Memorandum were found arguable and the unrepresented respondent filed no replying affidavit, so no prejudice was shown. The court exercised its unfettered discretion in the applicants' favour.

p. 3

Legal principles established

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  • The power to extend time under Rule 4 is discretionary and unfettered, and the applicant must explain to the satisfaction of the court that the discretion should be exercised in their favour

Court orders

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  1. 1.Application for extension of time allowed
  2. 2.1st applicant to file Notice of Appeal within 14 days of the date of the ruling
  3. 3.1st applicant to file Memorandum of Appeal within 14 days thereafter
  4. 4.Applicants at liberty at the appropriate time to apply for their appeals to be heard together

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3, 3A
  • Court of Appeal Rules, 2010Rules 4, 41, 42, 47
  • Court of Appeal Rules, 2022
  • Penal CodeSections 203, 204

Cases cited (2)

  • Stanley Kahoro Mwangi & 2 Others v Kanyamwi Trading Company Limited
    [2015] eKLR
  • Fakir Mohammed v Joseph Mugambi & 2 Others
    Civil Application No Nai 332 of 2004
On appeal from
High Court of Kenya
Jurisdiction invoked
Sections 3 and 3A of the Appellate Jurisdiction Act and Rules 4, 41, 42 and 47 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mucheru & another v Republic (Criminal Appeal (Application) 99 of 2021) [2023] KECA 623 (KLR)", Case Analysis (2023). Criminal Application (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/623/eng@2023-05-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.