Fredrick Ntoiti Mutura & Stephen Gichunge Kimathi v Republic [2017] KEHC 2160 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISC. CRIMINAL APPLICATIONCASE  NO. 41 & 42 OF 2017

FREDRICK NTOITI MUTURA .………...………... 1STAPPLICANT

STEPHEN GICHUNGE KIMATHI……….…….… 2ND APPLICANT

Versus

REPUBLIC ………..………..……….…………… RESPONDENT

RULING

1. I have before me two application by way of Notice of Motion dated 7th September, 2017 by Nicholas Gituma Kimathi and Stephen Gichunge Kimathi. Both applications are seeking leave to file appeal to the Court of Appeal out of time. Each 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 two days shy of 2 years as the judgment being appealed against was delivered on 13th October 2015. The Appellants argue that they filed their appeals in time except there was a problem between the prison documentation office and the court registry.  There is no evidence of the alleged problem between the prison office and the registry. However, in the course of things, it is not strange that there could be breakdown of communication between the prison office and the court registry. Again, these two persons are faced with death penalty and it is only fair that they are given an opportunity to contest their conviction and sentence.In the circumstances, I allow the two applications. Each applicant shall file appeal within 14 days of the date of this Ruling.

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

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F. GIKONYO

JUDGE