Maina v Republic [2022] KEHC 14855 (KLR)

Maina v Republic (Miscellaneous Criminal Application E163 of 2021) [2022] KEHC 14855 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14855 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Criminal Application E163 of 2021

GL Nzioka, J

October 18, 2022

Between

Cetrick Libuyi Maina

Applicant

and

Republic

Respondent

Ruling

1. The applicant herein was arraigned before the Chief Magistrate’s court on July 5, 2021, charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. He was charged in the alternative count, with the offence of Indecent act with a child contrary to section 11(1) of the subject Act.

2. He pleaded guilty to the main count and was convicted on his own plea of guilty. He was then sentenced to serve twenty (20) years in prison on the same date.

3. The applicant has now filed an application seeking for leave to appeal out of time. The applicant is supported by his own affidavit, in which he states;-a.That, I am a male Kenyan adult of sound mind and the appellant herein and as such conversant with the facts of the case and therefore competent to swear this affidavit.b.That, I was charged for an offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to twenty (20) years imprisonment.c.That, the learned trial magistrate erred in law and fact by convicting the appellant by relying on circumstantial evidence which was barely enough to convict the appellant.d.That, the learned trial magistrate erred in law and fact when he convicted the appellant yet failed to find that prosecution did not discharge the burden of proof.e.That, the learned trial magistrate erred in law and fact by convicting and sentencing the appellant to a harsh and excessive sentence.f.That, I could not appeal on time because upon incarceration I was disoriented and then I was transferred to Naivasha Maximum Security Prison, where I was put under quarantine as per the Covid-19 protocols and as such the follow up to my appeal became difficult.g.That, the Hon. Court be pleased to allow this application and furnish me with the certified typed record of the trial proceedings to enable me prepare for my appeal.h.That, due to my earlier intention to appeal, I beg leave of this honourable court for an extension time to Cetrick Libuyi Mainai.That, I wish to present at the hearing of this appeal.j.That, what I have deponed herein is true to the best of my knowledge, belief and trust.

4. He has also annexed to the application a memorandum of appeal. The application was served but was not opposed as no response was filed thereto. In the interest of Justice and based on the provisions of Article 148 and 150 of the Constitution,of Kenya 2010, I shall allow the applicant an opportunity to access justice and be accorded a fair hearing. I therefore allow the application and order the applicant do file an appeal within 14 days of the date of this order or the leave granted stand vacated. The Hon. Deputy Registrar to ensure the 14 days period granted is adhered to, and if not, the order herein be implemented as directed.It is so ordered.

DATED, DELIVERED AND SIGNED ON THIS 18TH OCTOBER, 2022 AT NAIVASHA.GRACE L. NZIOKAJUDGEIn the presence of;-Applicant in personMs Maingi for the State/RespondentMs Ogutu -Court Assistant