[2022] KEHC 1782 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

MISC CRIMINAL PETITION NO. 2 OF 2020

DENNIS NDIWA……………….…….……..……………………PETITIONER

-VERSUS-

REPUBLIC……..……………………………..…………………RESPONDENT

Hon. Justice R. Nyakundi

R U L I N G

The intended appellant has filed a notice of motion accompanied with an affidavit in support pursuant to Section 349 of the Criminal Procedure Code seeking a substantive order for extension of time to file an appeal out of time. He based his grounds on the averments premised in the affidavit which touch on the failure to be provided with the trial court record and judgment to facilitate in preparing the memorandum of appeal. Secondly he anticipated that the family would assist in retaining legal counsel to represent him in his intended appeal. He expressed fear that he lacks the prerequisite legal knowledge to navigate the appeal process.

From the application the intended appellant is aggrieved with entire judgment of the court below which convicted and sentenced him of the offence as charged.

DETERMINATION

In terms of the express provisions set out under Section 349 of the CPC the court is donated with the power to exercise discretion to enlarge time even if the application for an extension is made after the time for compliance has passed. I have examined the circumstance of this case and the consideration that the intended appellant did not have the advantage of legal counsel in the court below. The right to legal representation is provided for under Article 50(2) (g) & (h) of the constitution which is acknowledged as a fundamental right. There is the truth in the right for the very reason that it stands out as the beacon in plethora of fair trial rights guaranteed and protected by the constitution. It is not lost that without legal representation trials conducted by the state against accused persons are considered prejudicial, improper, unfair and fatally irregular. Although the provision on legal representation is clearly worded in our constitution most of the trial magistrates rarely invoke it at the onset of the trial against any of the accused persons. That in essence if brought to the attention of the court by an intended appellant will be considered as sufficient cause to enlarge time notwithstanding the length of the period of delay to file an appeal. In support of this right Lord Denning in his decision in Pett –v- Greyhound Racing Associate(1968) 2 All E.R 545 at 549 he had this to say“t is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weaknesses in the other side. He may be tongue-tied or nervous, confused or wanting in intelligence. He cannot examine or cross examine witnesses. We see it everyday. A magistrate says to a man: "You can ask any questions you like"; whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task?”

I am of the view practically in our society being that of an adversarial system many accused persons suffer in silence as they navigate the criminal processes without legal representation. Despite the limited resources right to legal representation under Article 50(g) & (h) of the constitution is an automatic and guaranteed right. It is therefore necessary the legal aid scheme be made to work for our vulnerable citizens envisaged by Lord Denning in the Pett supra case. In seeking to resolve matters arising in the instant application I am guided by the principles in Peter Haddad –v- Donald Silvera, SCCA NO. 31/2003, a judgment delivered on the 31st July, 2007 where he opined that:- ““The Court has an untrammelled discretion. This discretion must be exercised judicially. There must be some material upon which the Court can exercise its discretion (see Patrick v Walker) [(1969) 11 JLR 303]…” “The authorities show that in order to justify a court in extending time during which to carry out a procedural step, there must be some material on which the court can exercise its discretion. If this were not so then a party in breach would have an unqualified right for an extension of time and this would seriously defeat the overriding objectives of the rules.”

In addition Harris JA in the case of Carlton Williams v Veda Miller [2012] JMCA App 39 opined at paragraph 32 that: - “The reason for the failure of the applicant to comply within the requisite time is highly material. Some reason for the delay must be advanced. Even in the absence of a good reason, the court may nonetheless grant an extension, if the interests of justice so requires.”

It goes without saying persuaded by the above guiding principles I do exercise judicial discretion to allow the application for an extension of time so that a second opportunity be extended to the intended appellant to be heard on the merits of his appeal. In the result the Deputy Registrar of the High Court is instructed to make good the typed proceedings and judgment of the lower court for purposes of the parties to the intended appeal to prepare as such. As a consequence of the preceding orders the intended appellant has 45 days period within which to file his memorandum and record of appeal.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 4th DAY OF MARCH, 2022.

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R. NYAKUNDI

JUDGE