[2023] KEHC 24934 (KLR)

Kinyati v Republic (Miscellaneous Criminal Application E014 of 2023) [2023] KEHC 24934 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24934 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Miscellaneous Criminal Application E014 of 2023

AK Ndung'u, J

November 8, 2023

Between

Samuel Mwangi Kinyati

Applicant

and

Republic

Respondent

Ruling

1. The ruling resolves the undated notice of motion filed on 24/05/2023 seeking leave to file an appeal in the Court of Appeal out of time of the judgment delivered on 09/02/2016 by this court (Kasango J) in High Court Criminal Case No 48 of 2015. The application is brought under section 349 of the Criminal Procedure Code.

2. The application is supported by the Applicant’s affidavit filed together with the application. The Applicant deponed that he was convicted of defilement contrary to section 8(1) and section 8(2) of the Sexual Offences Act and he was sentenced to life imprisonment. His appeal to this court was dismissed. He stated that he did not appeal to the court of appeal on time due to the fact that his relatives had promised to hire an Advocate to represent him but they were unable to raise the required fees.

3. The Application was opposed and Counsel for the Respondent has urged orally that the instant application ought to be lodged before the Court of Appeal. That this court is functus officio and lacks jurisdiction to entertain it. Reliance was placed on Rule 44 and 45 of the Court of Appeal Rules 2022.

4. The provision that provides for extension of time is Rule 4 of the Court of Appeal Rules which states;“The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.”

5. There is no provision in the Rules as to where the application for leave to file the appeal out of time should be filed. However, the Appellate Jurisdiction Act Cap 9 under section 7 provides;“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired:Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.”

6. The courts have had occasion to examine the import of Section 7 above. W. Korir J in Dominic Okodoi v Republic [2022] stated that;“The Court of Appeal considered the import of Section 7 of the Appellate Jurisdiction Act in Trimborn Agricultural Engineering Limited v David Njoroge Kabaiko & another [2000] eKLR and stated as follows:“The powers of the superior court to enlarge the time for lodging a notice of appeal out of time have been well defined by now. This Court in a recent decision delivered in the case of Peter Njoroge Mairo v Francis Gicharu Kariri & another, Civil Appeal (Application) No 186 of 1999, (unreported), said:“In our view section 7, above, should be given a construction which would obviate ridiculous result. The intention of the Legislature in enacting section 7, above, clearly appears to us to be that it can only be used and more specifically the very first time the intending appellant manifests his intention to appeal. It is for this reason that we agree with the remarks of Bosire Ag, JA (as he then was) in the case of Edward Allan Robinson & 2 others v Philip Gikaria Muthami, (Civil Application No Nai 187 of 1997) (unreported), where he remarked, in pertinent part, thus:‘Section 7, above was not, in my view, intended to cover appellants whose appeals have been struck out for incompetence and who desire to file competent appeals. Once a litigant files a valid notice of appeal and had obtained the necessary leave to appeal, where necessary, the matter respecting which an appeal is intended, is thereby removed from the jurisdiction of the superior court, except for limited matters in which specific jurisdiction has been conferred on it to deal with. Section 7, above, presupposes that an intending appellant has not taken any other steps in pursuance of that appeal.’Besides, from a careful reading of the provisions of rules 74 and 81 of the Rules of this Court, it is clear that they are intended to deal with the filing of appeals for the first time.”From the holding of the Court of Appeal, it is evident that the power donated to this Court under Section 7 of the Appellate Jurisdiction Act is only available to a litigant at the first instance. This Court is, however, deprived of such power once an applicant has made a similar application before the Court of Appeal as is the case in this matter. Once an applicant has moved the Court of Appeal in respect to an application to appeal out of time, the jurisdiction of this Court to hear and determine a similar application cease to exist’’. (See also Martha Njoki Maina v Republic [2017] eKLR, Kasango J)

7. In a detailed discussion in the case of Loise Chemutai Ngurule & another v Winfred Leshwarikimung’en & 2 others [2015] eKLR Munyo J in relation to Section 7 stated:“It was argued that this court has no jurisdiction to entertain an application for extension of time to lodge a Notice of Appeal out of time, and that Jurisdiction is only in the Court of Appeal. Reliance was made on the decision in the case of Simon Towett Martim v Jotham Muiruri Kibaru, Nakuru High Court, Miscellaneous Civil Application No 172 of 2004 (2004) eKLR. In the matter, it was held that Rule 4 of the Court of Appeal Rules grants the Court of Appeal exclusive jurisdiction to grant extension of time to file an Appeal to the Court of Appeal. The Court (Kimaru J) held that in the circumstances, the High Court had no jurisdiction to entertain an application for extension of time to lodge Notice of Appeal out of time.With respect I disagree with the above decision. Section 7 of the Appellate Jurisdiction Act, CAP 9, is drawn as follows:Section 7 Power of High Court to extend time.The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired:Provided that in the case of a sentence of death no extension of time shall be granted after the issue of the warrant for the execution of that sentence.It will be seen from the above that Section 7 is explicit, that the High Court(which now in light of the Constitution of Kenya 2010 needs to be construed as also including the Environment and Land Court and the Industrial Court), may extend time for giving notice of intention to appeal of Appeal. I think Section 7 does not need any more than a literal interpretation. Jurisdiction is clearly conferred to the High Court to extend time for the filing of a Notice of Appeal. To decide otherwise is akin to completely disregarding, what in my view, is a clear provision in the law.Neither am I of the view that there is any conflict between the above provision and the provisions in the Court of Appeal power to extend time, but it does not say that it is the Court of Appeal with exclusive power, in so far as the filing of a Notice of Appeal is concerned. That Provision is drawn as follows: -Rule 4: Extension of time.The Court May, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or a superior Court, for the doing of the act, authorised or required by the Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference in these Rules to any such time shall be construed as a reference to that time as extended.In my opinion, the power to extend time for the filing of a Notice of Appeal is vested in both the High Court (and courts of equal status) and the Court of Appeal. One can approach either court for the order. This is indeed the import of Rule 41 of the Court of Appeal Rules which provides as follows:One is therefore free to approach either the High Court or the Court of Appeal for extension of time to lodge Notice of Appeal out of time.The matter indeed arose in the case of Kenya Airports Authority & another v Timothy Nduvi Mutungi, Court of Appeal, Civil Application No NAI 165 of 2013 (UR 113/2013 (2014) eKLR. In the case, an application for extension of time to lodge Notice of Appeal was filed in the High Court and the High Court declined to hear it, instead asking the applicant to file the application in the Court of Appeal. Githinji JA, had this to say on that point:“The application of 10th December, 2012 ( the application for extension of time to lodge Notice of Appeal out of time), was properly made in the High Court as High has power to extend time for giving notice of intention to appeal pursuant to Rule 7 of the Court of Appeal Rules (sic) (clearly meant Section 7 of the Appellate Jurisdiction Act set down)…. Since the application for extension of time for lodging a notice of appeal made in the High Court was competent and which the High Court should have determined….”It will be observed that the Court of Appeal did hold that the application for extension of time to lodge a Notice of Appeal out of time had been filed properly in the High Court and the High Court ought to have determined it.I do not therefore agree with the argument that this court has no jurisdiction to entertain the present application in so far as it seeks extension to time to lodge a Notice of Appeal out of time…..”

8. It therefore follows that the High Court has the jurisdiction to extend time for giving notice of intention to appeal from its Judgment or for making leave to appeal notwithstanding that the time for giving such notice or making such Appeal may have expired.

9. The Applicant seeks to appeal the decision of the High Court dismissing his appeal. The judgment ought to be appealed against was delivered on 09/02/2016. The present application was filed on 24/05/2023. The time for lodging an appeal is 14 days from the date of decision sought to be appealed against. Therefore, the time for filing the notice expired on 16/02/2016.

10. To my mind a delay of 7 years and 3 months is inordinate. The excuse given by the Applicant that he was waiting for his family to raise fees to find a lawyer. The Applicant has a right to an advocate. However, given the attendant length of the delay, the reason advanced is watered down and becomes unbelievable. Even after waiting for this long, it is apparent that the Applicant did not secure the services of a counsel as this application has been made in person. In essence that means that the Applicant has had the opportunity to proceed in person in the past 7 years, an opportunity he did not take. His reason is thus rendered insufficient.

11. This court is disadvantaged in that no draft Memorandum of Appeal is attached to show the nature of appeal. This was particularly important as any 2nd appeal to the Court of Appeal is restricted by law to a matter of law since section 361 (1) of the Criminal Procedure Code bars appeal against matter of fact to the Court of Appeal by stating thus:“(1)A party to an appeal from a subordinate court may, subject to subsection (8), appeal against a decision of the High Court in its appellate jurisdiction on a matter of law, and the Court of Appeal shall not hear an appeal under this section—(a)on a matter of fact, and severity of sentence is a matter of fact; or(b)against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power under section 7 to pass that sentence.”

12. In my view for an application like the one before court to succeed, the nature of the appeal would be a pivotal basis upon which the court can allow or decline the application.

13. From the foregoing, it is my finding that the Applicant has failed to lay any basis upon which leave to appeal out of time should be granted. The application has no merit and is dismissed.

DATED SIGNED AND DELIVERED AT NANYUKI THIS 8TH DAY OF NOVEMBER 2023A.K. NDUNG’UJUDGE