Njenga v Republic [2024] KECA 1771 (KLR)

Njenga v Republic (Criminal Application E058 of 2024) [2024] KECA 1771 (KLR) (4 December 2024) (Ruling)

Neutral citation: [2024] KECA 1771 (KLR)

Republic of Kenya

In the Court of Appeal at Nakuru

Criminal Application E058 of 2024

MA Warsame, JA

December 4, 2024

Between

James Kabiru Njenga

Applicant

and

Republic

Respondent

Ruling

1. The applicant, (James Kabiru) was convicted of defilement contrary to Section 8(1) as read with Section 8(2) of the 23 Sexual Offences Act}} and sentenced to life imprisonment in Criminal Case 902 of 2007 at Naivasha. The High Court, (Maraga, J. and Mwilu, J. as they were then) upheld the decision of the trial court in a judgment dated 19th March 2010 sentencing him to life imprisonment.

2. The grounds as stated on the face of the application and supported by the supporting affidavit sworn by the applicantare that he was not supplied with the trial court’s records and the trial court’s judgment to enable him to file the intended appeal.

3. In opposition to the application the respondent filed written submissions and submitted that the delay was inordinate and had not been explained.

4. In my view the applicant’s explanation for the delay of more than 14 years in filing the notice of appeal is not plausible. The fact that there is a judgment from the 1st appellate Court implies that the applicant was supplied with the requisite proceedings and judgment from the trial court. Furthermore, I find that no evidence of a letter requesting for the requisite certified copies of the proceedings and the judgment. I am guided by the dicta in Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, where it was held that:“the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for the delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.”

5. Consequently, I decline to exercise my discretion in favour of the applicant and dismiss the application with no order as to costs.

DATED AND DELIVERED AT NAKURU THISTDAY OF DECEMBER, 2024M.WARSAMEJUDGE OF APPEALI certify that this is a True copy of the originSignedDEPUTY REGISTRAR