[2019] KEHC 10828 (KLR)
The court found that the applicant failed to demonstrate that the delay in filing the appeal was due to late supply of the judgment or order, as required by Section 349 of the Criminal Procedure Code. The explanation provided—that relatives failed to raise legal fees—was not considered sufficient cause. Furthermore,...
Source-derived case information.
- Citation
- [2019] KEHC 10828 (KLR)
- Parties
- Applicant: Kelvin Savari Munyao; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 61 of 2018
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Leave to Appeal Out of Time, Criminal Conviction Appeal, Burglary, Malicious Damage to Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kelvin Savari Munyao
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause to warrant leave to file an appeal out of time.
- 2 Whether the delay of over eight months in filing the application is excusable under Section 349 of the Criminal Procedure Code.
Ratio Decidendi
The court found that the applicant failed to demonstrate that the delay in filing the appeal was due to late supply of the judgment or order, as required by Section 349 of the Criminal Procedure Code. The explanation provided—that relatives failed to raise legal fees—was not considered sufficient cause. Furthermore, the delay of over eight months was deemed inexcusable and unexplained. Consequently, the court held that the application lacked merit and dismissed it.
Court Disposition
application dismissed
Orders
- The application for leave to file appeal out of time is dismissed.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HC.MISC.CR.APP CASE NO. 61 OF 2018
KELVIN SAVARI MUNYAO..................................APPLICANT
-VERSUS-
REPUBLIC...........................................................RESPONDENT
(FORMERLY KILUNGU SRMCR NO.26 OF 2O18)
RULING
INTRODUCTION
1. The Applicant was charged with offence of Bulgrary, contrary to Section 304 (2) and Stealing contrary to Section 279 (b) of the Penal Code.
2. Particulars being that on the night of 4th/5th January, 2018 at Mwaani Sub-location, Ikima Location in Kilungu Sub-county within Makueni County, Kelvin Savali Munyao broke and entered the dwelling house of Jackson Mbai Munyao with intention to steal therein and did steal from therein one jean trouser, the property of the said Jackson Mbai Munyao the said jean trouser being of the value of Kshs.1, 000/=.
3. Count II: Burglary, contrary to Section 304(2) and Stealing contrary to Section 279(b) of the Penal Code.
4. Particulars being that on the night of 4th/5th day of January, 2018 at Mwaani village, Mwaani Sub –Location in Kilungu Sub-County within Makueni County, Kelvin Savali Munyao broke and entered the dwelling house of Mackson Mbai Munyao with intent to steal therein and did steal from therein a lesso, one curtain, ladies top and T-shirt, the property of Mutindi Nzovi, being of the value of Kshs.3, 000/=.
5. Count III: Malicious injury to property contrary to Section 339(1) of the Penal Code.
6. Particulars being that on the 5th day of January, 2018 at Mwaani village, Mwaani Sub-locatio, Ikima Location in Kilungu Sub-county within Makueni county, Kelvin Savali Munyao wilfully and unlawfully destroyed assorted clothes valued at Kshs.55,000/= the property of Mutindi Nzovi.
7. He appeared in court on 08/01/2018 and admitted the charge and the facts thereof resulting in conviction and sentence to serve :-
Count I: Two years
Count II: Two years
Count III: Three years to run concurrently.
8. In his mitigation, he sought forgiveness and leniency. This was on 23/01/2018 after probation report disclosed that he was a repeat offender.
9. After about eight (8) months, he lodged application filed on 07/09/2018 seeking leave to file appeal out of time.
10. In his grounds in support he avers that his unnamed relatives promised to hire an advocate to peruse appeal but he learned later that they were unable to raise requisite legal fees.
11. Under Section 349 of the Criminal procedure Code an appeal ought to be lodged within 14 days from date of delivery of the sentence or order.
12. However, the said provision allows appellate court to consider a request for lodging an appeal out of time. If an applicant shows that the inability had been caused by late supply of judgment or order appealed against.
13. The applicant has not demonstrated that requirement set out by the said provisions, thus the court finds that the application has no merit and it’s dismissed.
14. The delay also for over 8 months is inexcusable as it is not explained.
SIGNED, DATED AND DELIVERED THIS 28TH DAY OF JANUARY, 2019, IN AN OPEN COURT.
................................
HON.C.KARIUKI
JUDGE