[2006] KEHC 1737 (KLR)
The court found that the applicant's claim of ignorance regarding the proceedings in Busia P.M.C. Juvenile Cause No.102 of 2005 was untrue, as the record showed he was present when the relevant order was made. The applicant's absence at subsequent mentions was deemed deliberate, and his explanation for the delay in...
Source-derived case information.
- Citation
- [2006] KEHC 1737 (KLR)
- Parties
- Applicant: John Mumali Shitabule; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 15 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Leave to Appeal Out of Time, Criminal Neglect of Child, Delay and Explanation, Court Attendance, Truthfulness of Affidavit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mumali Shitabule
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 grounds to be granted leave to file an appeal out of time.
- 2 Whether the applicant was aware of the proceedings in Busia P.M.C. Juvenile Cause No.102 of 2005.
- 3 Whether the delay in filing the appeal was deliberate or excusable.
Ratio Decidendi
The court found that the applicant's claim of ignorance regarding the proceedings in Busia P.M.C. Juvenile Cause No.102 of 2005 was untrue, as the record showed he was present when the relevant order was made. The applicant's absence at subsequent mentions was deemed deliberate, and his explanation for the delay in filing the appeal was found to be based on falsehoods and half-truths. Consequently, the applicant failed to demonstrate sufficient cause for the delay, and the application for leave to appeal out of time was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 24th January, 2006 is dismissed.
Full Case Text
Judgment text and source record
58 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
Misc Crim Appli 15 of 2006
JOHN MUMALI SHITABULE...............................................................................APPLICANT
VS
REPUBLIC........................................................................................................RESPONDENT
RULING
On 15th May, 2006 I heard arguments from the accused and the state counsel and thereafter dismissed the application dated 24th January, 2006. I reserved my reasons which I now give, but first the background:-
By an application by way of Chamber Summons dated 24th January, 2006 the applicant seeks an order that:
(a) The applicant be allowed to file an appeal out of time in Busia P.M.C. Juvenile Cause No.102 of 2005.
The application is supported by the annexed affidavit of John Mumali Chitabule and on the grounds that:
(i) The intended appeal has high chances of success.
(ii) The delay in filing the appeal was due to the fact that the applicant was not aware the existence of Busia P. M. C. Juvenile cause No.102/2005 as even the record of the said cause shows that the applicant was absent all through, as no charge was ever read to him.
(iii) That the applicant became aware of the existence of the said cause when he was arrested and charged in Busia SRM CC No.2107/2005. The charge was that of neglect of a child.
The thrust of the applicant’s case is that, he never attended court because he was not aware of the existence of the case (Busia P.M.C Juvenile Cause No.102/2005) in October 2005. That he only became aware when he was arrested and charged with the offence of neglecting a child in Busia P.M. C. Cr. Case No.2107/2005.
That had he been aware of the said ruling, he would have filed his appeal in time time. That the delay in filing the appeal was not deliberate. That in any event the appeal has high chances of success.
For the respondent it was argued that the applicant was present when the order was given on 9th July, 2005. Accordingly, the absence of the applicant at the mention on 11th September, 2005 was deliberate.
That having failed to attend the mention the court consequently made an order that the applicant be arrested and charged. This gave rise to Busia SRM CC No.2107/2003. That is the case he intends to have transferred to a different court in Misc. Criminal Application No.14/2006 citing bias as the main reason.
I have carefully perused the record of proceedings which I take the liberty to quote in extenso:
“28. 7.05
Coram: J. R. Ndururi RM
D. O. Otuko – children’s officer
Nashon: CC
Accused
10. 8.05
Coram: E. H. Keago RM
Court Prosecutor: IP Warui
CC: Musundi
Accused: Absent
Court: W/A to issue. Mention on 19/9/05.
E. H. KEAGO
R.M.
9. 9.05
Coram: E. H. Keago RM
Pros: IP Warui
CC: Mercy
Accused: Present
COURT: The respondent is ordered to be remitting Ksh.3000/= through children department on every 9th month starting September 2005. In default the respondent be arrested and charged accordingly. Mention on 11/1/05 to establish compliance.
E. H. KEAGO
RM
11/10/05
coram: E. H. Keago RM
Pros: IP Warui
CC: Musundi
Accused: Absent
COURT: E. H. Keago RM
Pros: IP Warui
CC: Musundi
Accused: Absent
COURT: Respondent has not complied with the order which was passed. He will now be arrested and charged with the offence of neglect.
E. H. KEAGO
RM”
By record of proceedings the accused was absent all along save for the 9th September, 2005 when the Resident Magistrate ordered that he be arrested and charged with the offence of neglect.
In the circumstances, the complaint of the applicant is based on falsehood and half truths. The applicant is economical with truth.
Those are the reasons why I dismissed the application dated 24th January, 2006.
DATED and delivered at Bungoma this 22nd day of May 2006.
N.R.OP. OMBIJA
JUDGE