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JudgmentNashon Kembero Mogonchi VS ODPP2 min read

Nashon Kembero Mogonchi VS ODPP

High Court at Kisii High Court · · Odera Teresa Achieng


INTRODUCTION

  1. The Application before me is that dated 4th September, 2024 filed by the intended Appellant. It is an application brought pursuant to the provisions of Section 7 of the Appellate Jurisdiction Act, CAP 9, Laws of Kenya and article 50 (2) (q). The substantive order sought is for enlargement of time within which the Appellant may be allowed to lodge and file a Notice of Appeal out of time. The application is based on the ground that the Applicant herein filed a notice of Motion of intention to Appeal against the Judgment of this court delivered on 21st May, 2024 in Kisii criminal Appeal No.23 of 2022 through the e-filing system on 28th May, 2024 but the same was not presented to the Registrar for appropriate action early enough.
  2. The Application is supported by the affidavit of Nashon Kembero Mogonchi, the Appellant herein. He has averred that he lodged his notice of intention to Appeal dated 27th May, 2027 on 28th May, 2028 and paid requisite court fees. After making the said payments he made follow ups with the high court criminal registry since then but no assistance has been accorded to him.
  3. The Respondents was not opposed to the Application.

DETERMINATION

  1. Having considered the Application, the supporting Affidavit and the annextures  thereto, I find that the issue of determination is whether this court should grant the Applicant leave to file notice of intention to Appeal out of time.
  2. Section 7 of the Appellate Jurisdiction Act, does allow the High Court leeway to grant leave to file a Notice of Appeal out of time. It is worded as follows:-

Section . 7 Power of High Court to extend time

The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired:

Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.

  1. The Applicant on the face of the Application is seeking leave of extension of time file a notice of intention to Appeal. However in his own Affidavit especially paragraph 3 thereof, he avers that on 28th May, 2024 he filed a notice of intention to Appeal and in fact attached copies of the same together with court fees receipts.
  2. One would therefore wonder why he is seeking leave to file a notice of intention to Appeal out of time while he had already filed one on 28th May, 2024. Upon  filing the Notice of intention to Appeal the application ought to have filed the  Intended Appeal .
  3. Therefore , the court would only have granted him leave to file a notice of Appeal out time one if none existed. Since there exists a notice of intention to Appeal and the orders sought in this Application cannot be granted. The prayer sought is thus superfluous . I therefore proceed to strike out the Application.
  4. It is so ordered. File is closed.

T. ODERA

JUDGE

28.1.25

DELIVERED IN OPEN COURT AT KISII IN THE PRESENCE OF ;

The applicant .

Mr Koima. for the State .

CA - OIGO

    Nashon Kembero Mogonchi VS ODPP Nashon Kembero Mogonchi VS ODPP