[2023] KEHC 22907 (KLR)

Kamua v Republic (Miscellaneous Criminal Application E068 of 2023) [2023] KEHC 22907 (KLR) (2 October 2023) (Ruling)

Neutral citation: [2023] KEHC 22907 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Criminal Application E068 of 2023

RN Nyakundi, J

October 2, 2023

Between

James Kamua

Applicant

and

Republic

Prosecutor

Ruling

1. The applicant James Kamau lodged a Notice of Motion before this court on 31st July 2023 seeking extension of time to appeal against the decision of the trial court in Criminal Case No E068 of 2023. The application is premised on the following grounds:1. That: I failed to write the above mentioned matter within the stipulated period due to lack of court proceedings/ruling judgement2. That: I had relied on my parents/relatives to hire an advocate for the me but they failed to get money to pay advocates3. That while in prison, I requested the prison authority to allow me write the same4. That: What I deponed here above is truth and the truth alone. In support of the application he deposed as follows:1. That I am a male adult, Kenyan citizen and of sound mind and therefore capable to swear this affidavit2. That: I was arrested charged, convicted and sentenced to 20 years imprisonment by the trial magistrate for the offence of Robbery with violence c/section 296 (2) of thepenal code3. That I did not appeal within the stipulated period of 14 days since I had on my family who had promised to hire an advocate on my behalf but failed to due to financial constraints leading to the delay in filing the appeal4. That it is my prayer that may this honorable court be pleased and allow my application to appeal out of time as prayed.5. That my appeal has got a high chance of success6. That I wish to be present at the hearing of this application7. That what is herein deponed is true to the best of my knowledge, information and belief.

2. Apparently, from the record the application stands unopposed.

Determination 3. The only issue for my determination is whether the applicant has been able to advance sufficient cause to warrant extension of time. Section 349 of the Criminal Procedure Code gives discretion powers to the court to enlarge time in favour of the applicant to file his or her appeal out of time. It states 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 have elapsed and shall so admit the appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of appellant or his advocate to obtain a copy of the judgement or order appealed against and a copy of the record within a reasonable time of applying to the court thereof”

4. By the spirit of this provision, delay of even a single day has to be accounted for by the applicant to enable the court exercise discretion judiciously. The basis of it is to ensure there is compliance to the prescribed timelines within which an aggrieved party must approach the court for purpose of an appeal.

5. In the case of Salat v Independent Electoral & Boundaries Commission & 7 Others [2014] KLR-SCK the following guidelines are of significance as formulated to assist the court in exercising discretion to decline or grant the remedy on extension of time.1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court.2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court.3. Whether the court ought to exercise the discretion to extend time, is a consideration to be made on a case to case basis.4. Whether there is a reasonable reason for the delay, which ought to be explained to the satisfaction of the court.5. Whether there would be any prejudice suffered by the respondents if the extension was granted.6. Whether the application had been brought without undue delay, and7. whether in certain cases, like election petitions, public interest ought to be a consideration for extending time.

6. What is critical in this application is to establish whether the applicant has established sufficient reasons for this court to extend time as stipulated under Section 349 of the CPC or any such criteria to achieve the constitutional right of appeal or for the interest of justice. The applicant on his part has stated in the affidavit that the delay was as a result of lack of the trial court record and the impugned judgement. In the first instance under Article 50 (2)(q) of the constitution, the applicant has a right once convicted to appeal to or apply for review by a higher court as prescribed by law. Further in sub Section 4(b) of the same Article the applicant has the right to a copy of the record of the proceedings within a reasonable period after they are concluded. In return for a reasonable fee as prescribed by law.

7. Having considered the application, the factors raised by the applicant constitute sufficient good cause for extending the time to facilitate him to secure the record and file his appeal out of time. Pursuant to Section 349 of the CPC the Memorandum of Appeal prepared necessary to meet the requirements of the right of appeal be deemed as duly filed within time. By dint of this ruling the Deputy Registrar to supply the Applicant with a copy of the trial court record and judgement within 30 days from today’s date. Further mention on 30th of October for further directions on the appeal process.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 2ND DAY OF OCTOBER, 2023. In the presence of:Applicant Present..............................R. NYAKUNDIJUDGE