[2017] KEHC 3042 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NANYUKI

MISC. CRIMINAL APPLICATION NO. 44 OF 2017

MARTHA NJOKI MAINA ................APPELLANT

Versus

REPUBLIC ………………………………RESPONDENT

JUDGMENT

1. MARTHA NJOKI MAINAhas by a Notice of Motion dated 21st June 2017 sought the following prayer:

“That the applicant be allowed to file appeal out of time against the conviction and sentence in Nanyuki High Court Criminal Appeal No. 22 of 2015”.

2. I ought to admit that when I first read the prayers sought I formed the opinion that the applicant had misdirected her application to the High Court whereas she should have filed the application in the court of appeal where her appeal is intended to be filed. However on my reading of the Appellant Jurisdiction Act Cap 9 and the Court of Appeal Rules 2010, I found that indeed this court has jurisdiction to entertain the applicant’s application.

3. If there is doubt whether this court has jurisdiction to entertain the applicant’s application I will refer to Section 7 of Cap 9 which 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”.

4. It is clear from the above Section 7 that this court can entertain the present application. In a detailed discussion in the case: LOISECHEMUTAINGURULE& ANOTHER V. WINFRED LESHWARIKIMUNG’EN& 2 OTHERS [2015] eKLRMunyo J. discussing Section 7 of Cap 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 TOWETTMARTIM V.JOTHAMMUIRURIKIBARU, 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 tothe 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 respectI 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 thecase is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired:

Provided that in thecase 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 theact, 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 inboth 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 Vs. Timothy NduviMutungi, 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. GithinjiJA, 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 forextension oftime 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…..”

5. Rule 59 of the Court of Appeal Rules 2010 provides that a party desiring to appeal to the court of appeal shall file Notice of Appeal within 14 days. That Rule states:

“Any, person who desires to appeal to the Court shall give notice in writing, which shall be lodged in sextuplicate with the registrar of the superior court at the place where the decision against which it is desired to appeal was given, within fourteen days of the date of that decision, and the notice of appeal shall institute the appeal”.

6. The applicant by her affidavit statedthat this courtdelivered its judgment on 8th March 2017 against her Criminal appeal. That she was dissatisfied with that judgment. That her previous advocate failed to lodge her appeal within time.

7. This courtwas informed by applicant’s counsel from the bar that he had filed an application for leave to file a notice out of time at the court of appeal but was directed by the registry of that court to file it at the High court. That may well explain the delay in filing the present application. That delay in my view and with the explanation given by the applicant is excusable.

8. Accordingly the court grants orders that:

(a) The applicant is granted an extension of time to file a Notice of appeal against Nanyuki High Court Criminal Case No. 22 of 2015. Such Notice shall be filed within 14 days from today.

(b) There shall be no orders as to costs to the Notice of Motion dated 21st June, 2017.

Dated and Delivered at Nanyuki this 4th October 2017

MARY KASANGO

JUDGE

Coram

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

Accused: Martha Njoki Maina

For state: ………………………………

Language …………………………………

COURT

Judgment delivered in open court

MARY KASANGO

JUDGE