Nicholas Mwenda v Republic [2017] KEHC 3153 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISC. CRIMINAL APPLICATION CASE  NO. 40 OF 2017

NICHOLAS MWENDA .……..APPLICANT

VERSUS

REPUBLIC ………………  RESPONDENT

RULING

1. Nicholas Mwenda has applied for leave to appeal out of time.  He is aggrieved against the judgment of this Court (Hon. Kiarie  J.) made on 11th May, 2016 upholding the judgment of the  Senior Resident Magistrate’s Court, Githongo wherein he had been convicted  with the offence of defilement contrary to  Section 8 (1) (3) of  the Sexual Offenses Act.

2. The time for appealing expired on 25th May, 2014.  There is therefore a delay of three (3) years and four (4) months.  That is in all circumstances, inordinate.

3. The reasons advanced for the delay is that there occurred a filing problem between the Prisons Documentation Office and  this Court’s registry whereby he was unable to lodge his appeal in time.  The Applicant has contended that the intended appeal has overwhelming chances of success.

4. Having considered the case in its entirety, I find the reasons advanced for the delay to be credible. It is not farfetched that, in the normal course of events, there can be breakdown of communication between this Court’s registry and the Prisons Department wherein the Applicant is being held.  To my mind, that is a plausible explanation.

5. Further, and what weighed heavily on my decision, considering the long sentence which the Applicant is serving and that he has only spent three years out of the twenty he is serving, it is just and fair to grant the Applicant an opportunity to ventilate his case before a higher Court for  consideration.

6. Accordingly, leave is granted as prayed.  The Notice of Appeal be filed within 14 days of the date hereof.

DATED and DELIVERED at MERU this 4th day of October, 2017.

A. MABEYA

JUDGE