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Court of AppealAllowedMotion on notice under rule 68 of the Appellate Jurisdiction Act (arising from H.C. CRA. No. 32 of 2016, Marsabit)· [2024] KECA 1351 (KLR)

Boru v Republic (Criminal Application E100 of 2024) [2024] KECA 1351 (KLR)

Court of Appeal of Kenya

3 October 2024

SKS. Ole Kantai

610 words in judgment

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The bottom line

The Court of Appeal gave a man serving a life sentence a second chance to appeal, even though his application was late and poorly prepared.

What this practically means

Executive summary

This is a single-judge ruling of the Court of Appeal at Nyeri (S. Ole Kantai, JA) on an undated, homemade motion under rule 68 of the Appellate Jurisdiction Act by Galgalo Dido Boru, seeking leave to appeal out of time against the judgment of Kiarie, J. in H.C. CRA. No. 32 of 2016, Marsabit, delivered on 18th December 2017. The applicant had been convicted of defilement under section 8(1)(2) of the Sexual Offences Act and sentenced to life imprisonment. His stated grounds were that the High Court failed to consider his mitigating circumstances, that emerging jurisprudence has declared mandatory sentences including life sentences unconstitutional, and that time spent in remand should count towards his sentence under section 333(2) of the Criminal Procedure Code. There was no replying affidavit, but the Director of Public Prosecutions filed submissions, ultimately conceding, in the interest of justice under Article 159(2) of the Constitution, that leave should be granted given the life sentence. Applying the settled principles in Leo Sila Mutiso v Rose Hellen Wangari Mwangi on extension of time, and noting that it was unclear when the applicant was convicted and that the application was undated, the judge nevertheless declined to shut the path to appeal. The motion was allowed, with leave to file the appeal within twenty-one days. No costs order was made. The decision below was not disturbed; only leave to appeal was granted.

Key legal issues

Extension of time to file an appeal out of time

Holding

The discretion to extend time was exercised in the applicant's favour; the respondent did not oppose, and the sentence of life imprisonment weighed in favour of granting leave.

Reasoning

The court restated the Leo Sila Mutiso principles governing extension of time: length of delay, reasons for delay, arguability of the appeal, and prejudice to the respondent. Although the applicant's reasons were thin and the memorandum of appeal homemade and undated, the respondent conceded that leave should be given in the interest of justice under Article 159(2) of the Constitution, mindful of the life sentence imposed. The judge declined to shut the path to appeal and allowed the motion with a 21-day filing window.

p. 2

Legal principles established

Whether or not to extend time for appealing is essentially discretionary, having regard to the length of and reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

1.The motion is allowed
2.The applicant is granted leave to appeal out of time
3.The appeal shall be filed within twenty one (21) days of 3rd October, 2024

Authorities

Legislation

Appellate Jurisdiction Actrule 68
Sexual Offences Actsection 8(1)(2)
Criminal Procedure Codesection 333(2)
Constitution of Kenya, 2010Article 159(2)

Cases cited (1)

Leo Sila Mutiso v Rose Hellen Wangari Mwangi
[1999] 2 EA 231

On appeal from: High Court of Kenya at Marsabit; H.C. CRA. No. 32 of 2016
Jurisdiction invoked: Rule 68 of the Appellate Jurisdiction Act (extension of time to appeal)

Key timeline

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Cite this brief

Caselaw, "Boru v Republic (Criminal Application E100 of 2024) [2024] KECA 1351 (KLR)", Case Analysis (2024). Motion on notice under rule 68 of the Appellate Jurisdiction Act (arising from H.C. CRA. No. 32 of 2016, Marsabit). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1351/eng@2024-10-03

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