[2018] KEHC 2720 (KLR)
The court found that the applicant had already been given an opportunity to mitigate before sentencing, and that the only reason advanced for the delay in seeking leave to appeal out of time was reconciliation with the complainant. The court held that reconciliation is not a legal ground or exceptional reason under...
Source-derived case information.
- Citation
- [2018] KEHC 2720 (KLR)
- Parties
- Applicant: James Wambua Kivuva; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 263 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Judges
- CM Kariuki
- Legal Topics
- Criminal Appeals, Out of Time Applications, Stock Theft, Mitigation, Sentencing, Procedural Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Wambua Kivuva
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient legal grounds to warrant leave to appeal out of time.
- 2 Whether reconciliation with the complainant constitutes an exceptional reason for delay under Section 341 of the Criminal Procedure Code.
Ratio Decidendi
The court found that the applicant had already been given an opportunity to mitigate before sentencing, and that the only reason advanced for the delay in seeking leave to appeal out of time was reconciliation with the complainant. The court held that reconciliation is not a legal ground or exceptional reason under Section 341 of the Criminal Procedure Code to justify the delay. As such, the applicant failed to demonstrate any sufficient cause for the court to exercise its discretion to allow the appeal out of time. The application was therefore found to be without merit and dismissed.
Court Disposition
application dismissed
Orders
- The application for leave to appeal out of time is dismissed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCR MISC. APPL NO. 263 OF 2017
(Formerly Makindu PMCRC No. 410 of 2016)
JAMES WAMBUA KIVUVA........................APPLICANT
-VERSUS-
REPUBLIC.................................................RESPONDENT
RULING
INTRODUCTION
1. The Applicant with another not before this court was charged in Lower Court with offence of:- COUNT I: STOCK THEFT CONTRARY TO SECTION 278 OF THE PENAL CODE.
2. Particulars being that on the night of 27th and 28th day of March 2016, at Kalamba village in Nzaui Sub-County within Makueni County, James Wambua Kivuva stole one he goat valued at Kshs.3,000/= the property of Jackson Kivuva Kimuya.
3. COUNT II: STOCK THEFT CONTRARY TO SECTION 278 OF THE PENAL CODE.
4. Particulars being that on the night of 30th and 31st March, 2016 at Kalamba village in Nzaui Sub-county within Makueni County, James Wambua Kivuva and Benjamin Mutunga Masila jointly stole one she goat valued at Kshs.5,500/= the property of Jackson Kivuva Kimuya.
5. COUNT III: STEALING CONTRARY TO SECTION 275 OF THE PENAL CODE.
6. Particulars being that on the 30th day of March 2016, at Kalamba village in Nzaui sub-county within Makueni County, James Wambua Kivuva and Benjamin Mutunga Masila jointly stole 45 kilograms of maize grain and one chicken all valued at Kshs.2,000/= the property of Francisca Munini Sammy.
7. On 04/04/2016, he appeared in court and he pleaded guilty to the charge.
8. The facts were read to him and he stated that they were true.
9. When given chance to mitigate, he said that he asked his father to forgive him.
10. On sentence, the court awarded Applicant:-
Count I: Two years imprisonment.
Count II: Two years imprisonment.
Count III: Six months imprisonment.
11. The same were to run consecutively. This was on 04/04/2016.
12. On 30/10/2017, after a period of about one year and a half, the Applicant lodged instant application to lodge petition of mitigation out of time.
13. Of course the mitigation was done in Trial Court after conviction, before sentence. The court had assumed that he seeks to lodge appeal out of time.
14. Section 341 Criminal Procedure Code stipulates that an appeal in criminal case shall be lodged within 14 days save for exceptional reasons.
15. The only reason given by Applicant for delay aforesaid is that he has now reconciled with his father (complainant) and he is ready and willing to settle matter out of court.
16. The aforesaid reason is not an excuse for the delay. The court has not found any legal ground explaining the reason for delay in lodging appeal within time as stipulated by the law.
17. Thus court finds no merit in the application and dismisses the same accordingly.
DATED DELIVERED AND SIGNED THIS 30TH DAY OF OCTOBER, 2018 IN OPEN COURT.
……………………………
C. KARIUKI
JUDGE