David Tumbo M’munoru v Republic [2017] KEHC 2326 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISC. CRIMINAL APPLICATION CASE  NO. 43 OF 2017

DAVID TUMBO M’MUNORU……….APPLICANT

VERSUS

REPUBLIC …………………….…  RESPONDENT

RULING

1. I have before me undated application by way of Notice of Motion filed on 12th September 2017. The application is seeking leave to file appeal to the Court of Appeal out of time and as a pauper.  The application is supported by the affidavit of the Applicant. In such applications the applicant must show good cause why he did not enter the appeal in time; and such factors as his inability to obtain copy of the judgment or order appealed against, and copy of record of the trial is of paramount importance.

2. Applying the above test, the delay herein is for 6 years. The Applicant’s explanations for the delay is that; upon dismissal of his appeal on 8th October 2011, he was promised by his relatives that they will hire a lawyer for him to file the appeal but none was hired as they could not raise the advocates’ fee. A period of six years is inordinate and should be explained properly if the court should exercise its discretion in favour of the Applicant. Whereas the Applicant is entitled to legal counsel, he has not explained why he went to slumber for six years and did not move the court at earliest possible time or in good time. The fact that he wants to file appeal as a pauper does not hold sway. I am not convinced that this application fits the legal test and I dismiss it albeit with a lot of trepidation.

DATED and DELIVERED at MERU this 10th day of October, 2017.

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F. GIKONYO

JUDGE