[2020] KEHC 5740 (KLR)
The court found that the applicant failed to provide sufficient cause for the delay in filing the appeal out of time. The only explanation offered was the distance from Mandera, which the court found inadequate, as the applicant did not specify when he was transferred to Garissa G.K. Prison or provide any evidence...
Source-derived case information.
- Citation
- [2020] KEHC 5740 (KLR)
- Parties
- Applicant: Asitewhy Issack Elias; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 53 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Appeal Out of Time, Plea of Guilty, Sentencing, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Asitewhy Issack Elias
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether the explanation for the delay in filing the appeal is adequate under section 349 of the Criminal Procedure Code.
- 3 Whether a plea of guilty limits the right of appeal against sentence.
Ratio Decidendi
The court found that the applicant failed to provide sufficient cause for the delay in filing the appeal out of time. The only explanation offered was the distance from Mandera, which the court found inadequate, as the applicant did not specify when he was transferred to Garissa G.K. Prison or provide any evidence of attempts to file the appeal within the prescribed period. Furthermore, the applicant did not allege that the sentence was unlawful, only that it was harsh and excessive. The court emphasized that, following a plea of guilty, an appeal against sentence is only permissible if the sentence is unlawful. As the applicant did not meet the statutory requirements under section 349 of...
Court Disposition
application dismissed
Orders
- The application for leave to file appeal out of time is dismissed.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION NO. 53 OF 2019
ASITEWHY ISSACK ELIAS............................APPLICANT
VERSUS
REPUBLIC.......................................................RESPONDENT
RULING
1. The applicant was charged with offence of entering Kenya without passport or permit contrary to section 34(1) as read with section 53(1) (j) (2) of the Kenyan Citizenship and Immigration Act No. 12 of 2011.
2. He pleaded guilty and was thus convicted and sentenced to a fine of Kshs. 200,000/= and in default to serve 5 years’ imprisonment on 30/6/2017.
3. On 30/7/2019 he lodged a motion seeking to file appeal out of time. His only ground of delay of 3 years is that he prepared documents within time but due to distance as from Mandera he could not lodge same within the prescribed period.
4. The State opposes the application on grounds that the delay is in ordinate and there are no sufficient grounds adduced to support or explain the same.
5. Under section 349 of the Criminal Procedure Code Cap. 75 Laws of Kenya an appeal is supposed to be filed within 14 days from the date of the order or sentence appealed against save where the supply of record of appeal is delayed.
6. Provided that a court to which the appeal is made may for good cause admit the appeal after the period of 14 days has elapsed and shall also admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by in ability of appellant or his advocate to obtain a copy of record, within a reasonable time of applying to the court thereof.
7. The applicant has not satisfied the above prescription by his explanation. He only says that Mandera was far thus could not file appeal in time. He does not say when he was taken to Garissa G.K. Prison to enable court compute time from that date.
8. He has also not stated that the sentence was unlawful but only harsh and excessive. On a plea of guilty, you cannot lodge an appeal against sentence unless same is unlawful.
9. Thus, the court finds no merit in the application and same is dismissed.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 27TH DAY OF MAY, 2020.
.......................
C. KARIUKI
JUDGE