[2019] KEHC 4604 (KLR)
The court found that the applicant had demonstrated good cause for failing to file his appeal within the prescribed period, as the delay was due to his family's inability to raise funds to employ an advocate. The court exercised its discretion under section 349 of the Criminal Procedure Code to grant leave to appeal...
Source-derived case information.
- Citation
- [2019] KEHC 4604 (KLR)
- Parties
- Applicant: Moses Livoka Anzetse; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 20 of 2017
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Legal Topics
- Leave to Appeal Out of Time, Right of Appeal, Robbery With Violence, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Moses Livoka Anzetse
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 shown sufficient cause to warrant leave to appeal out of time.
- 2 Whether the applicant's right of appeal under Article 50(2)(q) of the Constitution is affected by failure to file within the prescribed period.
Ratio Decidendi
The court found that the applicant had demonstrated good cause for failing to file his appeal within the prescribed period, as the delay was due to his family's inability to raise funds to employ an advocate. The court exercised its discretion under section 349 of the Criminal Procedure Code to grant leave to appeal out of time, emphasizing that the right of appeal is constitutional and not subject to additional conditions. The applicant was therefore granted leave to file his appeal against both conviction and sentence within fourteen days.
Court Disposition
leave to appeal out of time granted
Orders
- Leave is granted to the applicant to file his appeal against both conviction and sentence.
- The applicant shall file the appeal within fourteen (14) days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISC. CRIMINAL APPLICATION NO. 20 OF 2017
MOSES LIVOKA ANZETSE........APPLICANT
VERSUS
REPUBLIC..................................RESPONDENT
RULING
1. The applicant through his Notice of Motion that was filed on 23rd February, 2017 has sought leave to appeal out of time in respect of his conviction and sentence of death for the offence of robbery with violence contrary to section 295 as read with section 296 (2) both of the Penal Code (Cap 63) Laws of Kenya.
2. The state through Ms. Rotich has opposed this application on the ground that the affidavit has not shown sufficient cause to be granted leave to appeal out of time.
3. An applicant under section 349 of the Criminal Procedure Code (Cap 75) Laws of Kenya is allowed to appeal within 14 days from the date of judgment or sentence. However, the court is given discretionally powers to extend the time within which an appeal may be lodged after the expiry of 14 days. In doing so, it is upon the applicant to satisfy the court that he has good cause entitled him to be granted leave to appeal out of time.
4. According to the applicant, he was told by his family that they were going to employ an advocate to file an appeal to the High Court. The family was unable to do so, because they did not have money to employ an advocate to do so. In his supporting affidavit, he has deponed to the fact that the family has not shown up as to whether they managed to get money to employ an advocate or not.
5. I find from the affidavit evidence of the applicant that he has shown good cause to be granted leave to appeal out of time within the meaning of section 349 of the Criminal Procedure Code. The inability of the applicant to file his appeal within the prescribed period was due to the inability of his family to employ an advocate, due to lack of money.
6. It is to be borne in mind that the right of appeal of a person who has been convicted of an offence has been constitutionalized in Article 50 (2) (q) of the 2010 Constitution of Kenya. The provisions of that article do not prescribe any conditions to be met before an applicant files his appeal.
7. The upshot of the foregoing is that leave is hereby granted to the applicant to file his appeal against both conviction and sentence in terms of his Notice of Motion filed in court on 23rd February, 2017.
8. The applicant has to file the appeal within fourteen (14) days.
Ruling signed, dated and delivered in open court at Kakamega this 4th day of September, 2019.
In the presence of the applicant and Ms. Rotich for the respondent
J.M. BWONWONG’A
JUDGE