[2023] KEHC 22886 (KLR)

Kimeli v Republic (Miscellaneous Criminal Application E024 of 2023) [2023] KEHC 22886 (KLR) (2 October 2023) (Ruling)

Neutral citation: [2023] KEHC 22886 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Criminal Application E024 of 2023

RN Nyakundi, J

October 2, 2023

Between

Evans Kimeli

Accused

and

Republic

Prosecutor

Ruling

Coram:Before Hon. Justice R. NyakundiMr. Mugun for the State 1. The applicant Evans Kimeli lodged a Notice of Motion before this court on 12th April, 2023 seeking extension of time to appeal against the decision of the trial court in Criminal Case No E024 of 2023. The application is premised on the following grounds:1. That: I delayed writing my appeal in time due to my poor financial status to raise application fees.2. That: I had been promised by my relatives that they will hire an advocate for me but they failed to pay the advocate hence the stipulated period of appeal elapsed.3. That the conviction and sentence of 5 years imprisonment made me confused at the time of entrance in prison making me fail to write the appeal in time.4. That: I pray this honorable High Court to allow my application for my benefit during determination.

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 todays date. Further mention on 30th of October for further directions on the appeal process.

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