[2022] KEHC 16134 (KLR)

Director of Public Prosecution v Mbogo (Miscellaneous Criminal Application E027 of 2022) [2022] KEHC 16134 (KLR) (7 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16134 (KLR)

Republic of Kenya

In the High Court at Embu

Miscellaneous Criminal Application E027 of 2022

LM Njuguna, J

December 7, 2022

Between

Director of Public Prosecution

Applicant

and

Espon Njiru Mbogo

Respondent

Ruling

1. Before this court is a notice of motion brought under article 50(1), 159(2) (b) & (d) of theConstitution, sections 348A and 349 of the Criminal Procedure Code dated August 2, 2022 seeking the following orders from this court.i)An order for leave to file appeal out of time.ii)An order that the petition of appeal annexed hereto be deemed to have been duly filed.iii)Any other order that the honourable court may deem fit to grant.

2. The application is premised on the grounds on its face and further supported by the affidavit sworn by the applicant. The applicant’s case is that the respondent herein was charged with the offence of assault causing actual bodily harm contrary to section 251 of Penal Code but was subsequently acquitted on June 15, 2022. That the complainant was aggrieved by the decision of the trial court and through her advocate Mwaniki Gachuba, wrote to the prosecution on June 15, 2022 to inquire on the possibility of an appeal against the judgment of the trial court. That certified copies of the proceedings were issued on July 18, 2022 and upon receiving the proceedings and perusal thereof, the applicant established that there are sufficient grounds of appeal hence this application. That the delay in instituting the applicant’s intended appeal was largely occasioned by the delay in obtaining certified copies of the proceedings and judgment of the trial court which under section 350 (1) of the CPC should accompany the petition of appeal. That the applicant has explained the delay in filing the application herein and has urged the honourable court to exercise its discretion to admit the appeal out of time under section 349 of the CPC.

3. The respondent in opposing the application filed a replying affidavit sworn on October 12, 2022 and wherein he deposed that the matter that the applicant intends to appeal against was determined on June 15, 2022 and the same has been overtaken by events. That the fact that the complainant was not satisfied with the determination of the trial court is improper for the reason that the party that ought to determine whether to appeal or not is the applicant. It was deposed that certified copies of the proceedings were issued on July 18, 2022 and that the application herein was filed in August, and that translates to thirty days delay after the proceedings were supplied and therefore, the leave sought should thus not be granted. That in any case, the intended appeal is devoid of any merit.

4. Directions were given that the application be canvassed by way of written submissions which all the parties complied with.

5. The applicant submitted that the delay in filing the appeal was not intentional but the same was occasioned by the delay in being supplied with certified copies of the proceedings and judgment. It was also submitted that the appeal raises substantial issues of law and therefore it is only just and fair that the application be granted. That section 349 of the CPC provides that an appeal should be filed within 14 days of the sentence or order sought to be appealed against. It was its contention that the aforementioned provision permits the appellate court to take into account a request for filing an appeal outside the prescribed time if the applicant can demonstrate that the failure was brought about by a delay in securing the judgment or order being contested.

6. The applicant further stated that the respondent was acquitted in Runyenjes Criminal Case No. E427 of 2021 for an offence of assault causing actual bodily harm contrary to section 251 of the Penal Code on June 15, 2022. That the complainant felt aggrieved by the decision of the trial court hence the application herein. It was submitted that upon receiving the complaint, it requested for copies of proceedings and judgment and the same were received on July 18, 2022. That thereafter, it requested the initial police file and on perusal, it formed the opinion that there was an arguable case. It was its case that should leave be denied, there is a likelihood of prejudice as the complainant shall have been denied an opportunity to be heard on appeal. It was thus prayed that the application be allowed.

7. The respondent on the other hand urged the court to dismiss the application as the applicant has not met the legal requirements for this court to exercise its discretion to allow extension of time for the applicant to file its appeal out of time. That it was incumbent upon the prosecution to be specific on the nature of the evidence that was not considered and that the application herein is a clear indication of an afterthought and as such, this court was urged to dismiss the application for being incompetent.

8. I have considered the application, the replying affidavit and the submissions by the parties and I find that the issue that I have to determine is whether the applicant has made out a case for the grant of an order for extension of time within which to file its appeal.

9. A party who is desirous of appealing against an order/sentence to the High Court has to do so within 14 days, following the delivery of the judgement/ruling sought to be appealed against. However, the High Court may, for good cause, extend time within which the convicted person may appeal. This is clear from the provisions of section 349 of the Criminal Procedure Code (cap 75) Laws of Kenya, which read as follows;“An appeal shall be entered within fourteen days of the date of the order or sentence appealed against:Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefore.”

10. Section 349, clothes this court with discretionary powers to be exercised for the interest of justice to the parties. Illuminative principles that the court ought to keep in mind in the exercise of its discretion may be drawn from Sila Mutiso v Rose Hellen Wangari Mwangi Civil Application No 255 of 1997 UR where the court stated:“It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are:1. First, the length of the delay.2. Secondly, the reason for the delay;3. Thirdly possibly the chances of the appeal succeeding if the application is granted; and4. Fourthly the degree of prejudice to the respondent if the application is granted.”

11. As such, extension of time within which to appeal is a matter of judicial discretion. An applicant seeking enlargement of time to file an appeal must show that he has a good cause for doing so.

12. The question therefore is whether the applicant has met the above conditions.

13. As for the length of the delay, it is not in dispute that the judgement herein was delivered on June 15, 2022 and the application herein was filed in the month of August 2, 2022 which is roughly two months from the date of the said judgment. In the case of Jaber Mohsen Ali & Another v Priscillah Boit & Another E & L No 200 of 2012 {2014} eKLR the court stated that what is unreasonable delay is dependent on the circumstances of each case. Even one day after judgment/ ruling could be unreasonable delay depending on the judgment/ruling of the court and any order given thereafter.

14. In the case herein, the applicant has provided reasons for the delay and which she has urged this court to consider when determining the application. The applicant has explained the reasons for delay which in my view, is not only plausible but also reasonable. In the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the court was of the view 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 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.”

15. The applicant submitted that upon delivery of the judgment, she sought to obtain the typed proceedings and judgment before time lapsed but the same was not possible given that the same were obtained after the lapse of the stipulated time to file an appeal.See Richard Nchapi v IEBC & 2 Others (supra) and further, in Abdulla Lule v R 1960] EA 21, the applicant’s application to appeal out of time was allowed because he did not obtain the judgement and proceedings of the lower court within 14 days to enable him to appeal.

16. The right to be heard is not only constitutionally entrenched but it is also the corner stone of the rule of law; a valued right; and is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice. [See article 50 of the Constitution].

17. In the same breadth, article 159 (2) (d) of the 2010 Constitution of Kenya mandates this court to administer substantive justice without undue regard to procedural technicalities.

18. As for the chances of the intended appeal succeeding, I have perused the draft petition of appeal. It is trite that in deciding whether an appeal is arguable or not, the court is bound to consider whether the said intended appeal raises a bona fide issue for determination by the court. For the intended appeal to be termed as arguable, all that is needed in law is that there be even one arguable point and that will suffice [See Commissioner of Customs v Anil Doshi [2007] eKLR ; Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others, Civil Application No 124 of 2008].

19. I have perused the notice of motion by the applicant, the grounds thereon and further, the grounds on the draft petition of appeal filed on August 2, 2022. The applicant has urged this court to consider the fact that the trial magistrate misdirected herself in law by failing to properly analyze the evidence before her and further ignoring the expert evidence of the doctor without giving any considerable reasons thereof. In my view, the issues raised by the applicant are arguable; however it is essential to note that an arguable appeal does not necessarily mean an appeal that will or must succeed.

20. As for the prejudice which the respondent stands to suffer should leave be granted, from the respondent’s replying affidavit, I did not come across any credible evidence to indicate any prejudice that would outweigh the granting of the orders sought. This is buttressed by the fact that the appeal herein is bound to be heard and determined on its own merits; and further, the respondent will equally be granted an opportunity to present his case.

21. Considering that extension of time to file appeal is a matter of exercise of judicial discretion, where a party is aggrieved and wishes to pursue an appeal, it would be fair to exercise discretion in her favour and especially where the delay in filing the appeal has been satisfactorily explained. However, discretion of the court must always be exercised judiciously and that the applicant having expressed her intentions to be heard by this court on appeal, it is my considered view that an opportunity should be availed to her to ventilate her appeal.

22. In the end, the application is hereby allowed and the following orders are made;i)That leave be and is hereby granted to the applicant to file an appeal out of time.ii)The petition of appeal to be filed within 14 days from the date hereof.It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF DECEMBER, 2022. L. NJUGUNAJUDGE……………………………….…….for the applicant…………………………………..for the respondent