Mwita v Republic (Criminal Application E114 of 2024) [2024] KECA 1343 (KLR)

Court of Appeal of Kenya

2 October 2024

ASASIKE-MAKHANDIA

556 words in judgment

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The bottom line

Kenya's Court of Appeal allowed a murder convict to appeal five years late, showing courts will excuse long delays when reasons are unchallenged and the right to appeal matters.

What this practically means

Executive summary

This is a single-judge ruling of the Court of Appeal at Kisumu by Asike-Makhandia, JA, on an application for extension of time to file an appeal against a conviction and 30-year sentence for murder imposed by Mrima, J of the High Court at Migori on 21st May 2019. The time for filing an appeal expired 14 days after delivery of that judgment, but the application was only filed on 8th July 2024 - a delay of about five years. The applicant explained that he did not receive the trial court's judgment in time and that his family's efforts to secure legal representation had not come to fruition. The respondent filed no documents in rebuttal and stated in submissions that it was not averse to the application being granted. The court reiterated that the power to extend time is discretionary, that the entire period of delay must be explained to the satisfaction of the Court, and that arguability of the intended appeal must be considered. Taking the applicant's uncontroverted depositions as truthful, and weighing the length of the sentence being served, the applicant's undoubted right to exhaust the appellate process, and the respondent's non-opposition, the judge exercised his discretion in the applicant's favour and allowed the application as prayed on 2nd October 2024. No costs order was made, and no prior decision was reviewed on the merits.

Key legal issues

Whether an inordinate delay of about five years in filing an appeal should be excused

Holding

Yes - the uncontroverted reasons for the delay, the applicant's right to exhaust the appellate process, his 30-year sentence and the respondent's non-opposition justified extending time despite the inordinate delay.

Reasoning

The applicant explained that he did not receive the trial court's judgment in time and that his family's efforts to secure a lawyer did not come to fruition. The respondent filed no rebuttal documents, so the depositions were taken as truthful, and it indicated in submissions that it was not averse to the application. Weighing these uncontroverted reasons against the delay, the court exercised its discretion in the applicant's favour.

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Legal principles established

The power to extend time is discretionary and requires the entire period of delay to be explained to the satisfaction of the Court, which must also consider whether the intended appeal is arguable.

Court orders

1.Application allowed as prayed - extension of time granted for the applicant to file his appeal out of time

Authorities

Legislation

Penal Codesection 203 as read with section 204

On appeal from: High Court of Kenya at Migori; Not stated in judgment
Jurisdiction invoked: Inherent discretion of the Court of Appeal to extend time for filing an appeal (Court of Appeal Rules - rules not named in the judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Mwita v Republic (Criminal Application E114 of 2024) [2024] KECA 1343 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1343/eng@2024-10-02

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