Midson Kamunga v The State

The applicant was convicted of rape as defined in section 65 of the Criminal Law Code on 4 May 2016. He was sentenced on the same date to 19 years imprisonment, of which 3 years was suspended for 5 years on the usual conditions of good behaviour. Six years later, on 3 May 2022, the applicant filed a chamber application seeking condonation for late noting of an appeal against both conviction and sentence, extension of time within which to appeal, and leave to prosecute the appeal in person. His explanation for the delay was poverty and Covid-19 restrictions. By the time of the application, he had already served six years of the sentence.

• Whether condonation should be granted for a six-year delay in noting an appeal against conviction and sentence
• Whether the applicant's explanation for the delay (poverty and Covid-19 restrictions) was acceptable
• Whether the application constituted an abuse of court process
• Whether the principle of finality in litigation should preclude the late appeal

The application for condonation for late noting of appeal against conviction and sentence, extension of time within which to appeal, and leave to prosecute the appeal in person was dismissed.

An application for condonation for late noting of an appeal will be dismissed as an abuse of court process where: (1) the delay is excessive (six years in this case); (2) the explanation for the delay is unacceptable; (3) the applicant has served a substantial portion of the sentence without exercising the right to appeal, indicating acceptance of the conviction and sentence; and (4) granting the application would undermine the principle of finality in litigation. Courts may dismiss such applications regardless of the prospects of success on appeal to prevent abuse of process and avoid setting bad precedent.

The court observed that the applicant had 'decided to try his luck' and that 'the reasons for this can only be known to him', suggesting skepticism about the applicant's true motivations for bringing the application after such a lengthy delay. The court also commented that to grant the application 'would be to sanction an abuse of court process' and 'will set a bad precedent', emphasizing broader policy considerations beyond the specific facts of the case.

This case is significant in establishing the limits of the court's discretion to grant condonation for excessive delays in noting appeals. It reinforces the principle that finality in litigation is paramount and that the right to appeal, while important, is not absolute. The case demonstrates that courts will not countenance abuse of process even where an applicant may have constitutional rights to appeal, particularly where there is an unexplained and excessive delay of six years and where the applicant appears to have acquiesced to the conviction and sentence by serving a substantial portion without complaint.