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Court of AppealAllowedCriminal Application (extension of time) arising from Naivasha HCCRA No. 39 of 2016· [2024] KECA 1795 (KLR)

Emojon v Republic (Criminal Application E186 of 2024) [2024] KECA 1795 (KLR)

Court of Appeal
6 December 2024
MGM. Gachoka
425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a death-row applicant more time to file his appeal after the State itself agreed the delay should be excused.

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 Nakuru delivered by Gachoka, JA on 6th December 2024 on a Notice of Motion dated 28th August 2024 seeking leave to appeal out of time. The applicant had been convicted in Naivasha CM Criminal Case No. 15 of 2015 of robbery with violence contrary to section 295 as read with section 296(2) of the Penal Code and sentenced to death. His first appeal to the Naivasha High Court was dismissed by Meoli, J. by judgment dated 27th May 2019. The applicant explained the delay in filing the intended second appeal on the ground that he was not furnished with the proceedings and judgment in good time. The application was unopposed: the State, through Senior Assistant Director of Public Prosecutions Mr. Omutelema, conceded that although there was a delay, the application should be allowed since the sentence meted out was heavy. The court invoked Rule 4 of its Rules, which permits extension of time for doing any act authorised or required by the Rules, and applied the principles enunciated by the Supreme Court in Agatha vs. Azad & 3 others [2022] KESC 1 (KLR). Satisfied that the threshold for the exercise of discretion had been met, the court allowed the application, directing the applicant to file his notice of appeal within 14 days and the record of appeal within 30 days thereafter. No costs order was made.

Key legal issues

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01

Extension of time to appeal out of time

Holding

The application met the threshold for exercise of the Court's discretion under Rule 4 and time was extended.

Reasoning

The court considered the application, supporting affidavit and annexures, the respondent's submissions and the law. It noted the Rule 4 jurisdiction and the principles from Agatha vs Azad. Notably, the application was unopposed and the State itself submitted that the delay should be excused, partly because the death sentence meted out was heavy. The court was satisfied the threshold was met and granted conditional timelines for filing the appeal.

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Legal principles established

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  • The Court may extend time limited by the Rules for doing any act, whether before or after the act, under Rule 4, applying the principles enunciated by the Supreme Court.

Court orders

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  1. 1.Leave to appeal out of time granted
  2. 2.Applicant to file notice of appeal within 14 days from the date of the order
  3. 3.Record of appeal to be filed and served within 30 days thereafter

Authorities

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Legislation

  • Penal Codesections 295 and 296(2)
  • Court of Appeal RulesRule 4

Cases cited (1)

  • Agatha vs. Azad & 3 others
    [2022] KESC 1 (KLR)
On appeal from
High Court
HCCRA No. 39 of 2016 (Naivasha)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

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, "Emojon v Republic (Criminal Application E186 of 2024) [2024] KECA 1795 (KLR)", Case Analysis (2024). Criminal Application (extension of time) arising from Naivasha HCCRA No. 39 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1795/eng@2024-12-06

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