[2022] KEHC 16041 (KLR)

Mutai v Republic (Miscellaneous Criminal Application E006 of 2022) [2022] KEHC 16041 (KLR) (6 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16041 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Miscellaneous Criminal Application E006 of 2022

F Gikonyo, J

December 6, 2022

Between

Joseph Kiprono Mutai

Applicant

and

Republic

Respondent

Ruling

Leave to appeal out of time 1. Vide an undated notice of motion filed herein, the applicant is seeking leave to appeal out of time.

2. The applicant was convicted on February 8, 2021 and sentenced to serve 15 years’ imprisonment.

3. The major ground in support of his application is that he could not file his appeal in time because he was in quarantine twice for COVID-19.

4. The prosecution opposed the application arguing that over 1 ½ years have lapsed and no good reason has been adduced for the delay.

Analysis and Determination 5. In the nature of the application, I should determine;

a. Whether the applicant has shown good cause for the court to allow him to file appeal out of time. 6. According to section 349 Criminal Procedure Code: -'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 has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court, therefore.'

7. The section provides for discretion to admit an appeal out of time if good cause has been shown by the applicant. Good cause includes; failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court. I have deliberately used the words 'good cause includes', for section 349 of the CPC is not and cannot be exhaustive. I should however, also state that 'good cause' in section 349 of the CPC does not extend to the merits or otherwise of the intended appeal. On this latter proposition, I am content to cite the case Republic –v- Ranchandra Shankaria Bhatt (2017) eKLR:

Applying the test 8. The applicant claims that he was not able to file his appeal in time because he was in quarantine twice due to COVID-19 pandemic. This court takes judicial notice that the COVID-19 pandemic adversely affected the operations of, as well as access to the court and other institutions. The relevant period falls within the time when COVID-19 restrictions and protocol were applicable. Accordingly, and contrary to the submission by the prosecution, there is good cause shown why the applicant did not file appeal in time. I allow him to file appeal within 14 days.

9. It is hereby so ordered.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH THE MICROSOFT TEAMS ONLINE APPLICATION, THIS 6TH DAY OF DECEMBER, 2022. ...............................F. GIKONYO M.JUDGEIn the presence of:1. Mr. Okeyo for the Respondent2. Mr. Kasaso CA3. Applicant - absent