[2023] KEHC 24960 (KLR)

Ndirangu v Republic (Miscellaneous Criminal Application E040 of 2023) [2023] KEHC 24960 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24960 (KLR)

Republic of Kenya

In the High Court at Nanyuki

Miscellaneous Criminal Application E040 of 2023

AK Ndung'u, J

November 8, 2023

Between

Charles Kihia Ndirangu

Applicant

and

Republic

Respondent

Appeal challenging sentence meted by trial court on grounds that the time spent in remand was not considered

The application sought leave to appeal out of time and to appeal as a pauper against a sentence of fifteen years for manslaughter. The court considered the applicant's reasons for the delay in filing the appeal and granted the application, permitting the appeal to be filed within 30 days. The court found that the appeal raised a legitimate legal issue regarding the sentencing court’s failure to account for time spent in remand.

Reported by John Ribia

Criminal Procedure– appeals – appeals filed out of time – inordinate delay - jurisdiction to allow an appeal filed out of time – second appeal on issues of law - whether the High Court had the jurisdiction to grant an extension of time for filing an appeal against sentencing out of time - whether a delay of over two years in filing a second appeal against sentencing on account that the appellant could not afford an advocate was justified - whether an appeal that sought to challenge a sentence on account that the sentencing court did not consider the time spent in remand raised issues of law to warrant a second appeal on issues of law - Appellate Jurisdiction Act (cap 9) section 7; Criminal Procedure Code (cap 75) sections 333(2), 349, and 361(1); Penal Code (cap 63) sections 202, and 203; Court of Appeal Rules (cap 9 Sub Leg) rules 4, 44, 45, 74, and 81.

Brief facts The application sought leave to appeal out of time and to appeal as a pauper against a sentence of fifteen years for manslaughter. The appellant contended 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 do so owing to the high legal fees. He urged the court to treat the attached memorandum of appeal as his petition of appeal. The application was opposed by the respondent urged orally that the application ought to be lodged before the Court of Appeal. Reliance was placed on rule 44 and 45 of the Court of Appeal Rules 2022.

Issues

Whether the High Court had the jurisdiction to grant an extension of time for filing an appeal against sentencing out of time.

Whether a delay of over two years in filing a second appeal against sentencing on account that the appellant could not afford an advocate was justified.

Whether an appeal that sought to challenge a sentence on account that the sentencing court did not consider the time spent in remand raised issues of law to warrant a second appeal on issues of law.

Held

Rules 44 and 45 of the Court of Appeal Rules did not apply to the instant application. Rule 44 referred to an application for leave to amend any document whereas rule 45 talked about lodging of the applications at the appropriate registry. The provision that provided for extension of time was rule 4.

The power donated to the court under section 7 of the Appellate Jurisdiction Act was only available to a litigant at the first instance. The court was however, deprived of such power once an applicant had made a similar application before the Court of Appeal as was the case in this matter. Once an applicant had moved the Court of Appeal in respect to an application to appeal out of time, the jurisdiction of the court to hear and determine a similar application cease to exist.

The High Court had 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.

A delay of 2 years and 5 months seemed unreasonable. The applicant had a right to an advocate and perhaps he harboured the honest belief that he could only succeed with the help of an advocate. While that may be a valid reason for the attendant delay, the delay was, on the face of it, inordinate. The court reluctantly excused the delay for reason that the applicant was a lay person acting in person and the dictates of justice would, in the circumstances of this case, demand that the applicant be given his day in court.

Section 361(1) of the Criminal Procedure Code barred appeals against the sentence to the Court of Appeal. The applicant sought to challenge the sentence on account that the sentencing court did not consider the time he spent in remand while awaiting trial in accordance with section 333(2) of the Criminal Procedure Code. The based on a point of law. It was one that was permissible within the confines of section 361(1) of the Criminal Procedure Code.

Application allowed.

Citations Cases Kenya Airport Authority & another Timothy Nduvi Mutungi (Civil Application 165 & 174 of 2013; [2014] KECA 241 (KLR)) — Applied

Maina, Martha Njoki v Republic (Criminal Appeal 22 of 2015; [2017] KEHC 7344 (KLR)) — Mentioned

Ngurule, Loise Chemutai & Another V. Winfred Leshwarikimung’en& 2 Others (Environment & Land Case 335 of 2012; [2015] KEELC 447 (KLR)) — Applied

Okodoi, Dominic v Republic (Miscellaneous Criminal Application 9 of 2020; [2022] KEHC 912 (KLR)) — Applied

Statutes Appellate Jurisdiction Act (cap 9) — section 7 — Interpreted

Constitution of Kenya — In general — Interpreted

Court of Appeal Rules (cap 9 Sub Leg) — rule 4, 44, 45, 74, 81 — Interpreted

Criminal Procedure Code (cap 75) — section 333(2); 349; 361(1) — Interpreted

Penal Code (cap 63) — section 202, 203 — Interpreted

AdvocatesNone mentioned

Ruling

1. This ruling disposes the undated chamber summons application filed on 29/08/2023 seeking leave to file an appeal in the Court of Appeal out of time and to appeal as a pauper from the judgment delivered on 06/05/2021 by this court (Waweru J) in High Court Criminal Case No.08 of 2018. The application is brought under section 349 of the Criminal Procedure Code.

2. The application is supported by the Applicant’s affidavit filed therein. Through his affidavit and the notice of appeal attached, the Applicant avers that he was convicted of manslaughter contrary to section 202 and section 203 of the Penal Code and he was sentenced to serve fifteen (15) years imprisonment.

3. 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 do so owing to the high legal fees. He urged the court to treat the attached memorandum of appeal as his Petition of Appeal.

4. The Application was opposed and counsel for the Respondent urged orally that the instant application ought to be lodged before the Court of Appeal. Reliance was placed on rule 44 and 45 of the Court of Appeal Rules 2022.

5. It is important to note that rules 44 and 45 of the Court of Appeal Rules do not apply to the instant application. Rule 44 talks about application for leave to amend any document whereas rule 45 talks about lodging of the applications at the appropriate registry.

6. The provision that provides for extension of time is Rule 4 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.”

7. 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.”

8. 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)

9. 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…..”

10. 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.

11. The Applicant seeks to appeal against the sentence only. The sentence ought to be appealed against was delivered on 06/05/2021. The present application was lodged on 29/08/2023. 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 20/05/2021.

12. To my mind a delay of 2 years and 5 months seems unreasonable. 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 and perhaps he harboured the honest belief that he could only succeed with the help of an advocate. While this may be a valid reason for the attendant delay, the delay is, on the face of it, inordinate. I would, however, very reluctantly excuse the delay for reason that the applicant is a lay person acting in person and the dictates of justice would, in the circumstances of this case, demand that the applicant be given his day in court.

13. Section 361(1) of the Criminal Procedure Code bars appeal against the sentence 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.”

14. According to the attached memorandum of appeal, the Applicant seeks to challenge the sentence on account that the sentencing court did not consider the time he spent in remand while awaiting trial in accordance with section 333(2) of the Criminal Procedure Code.

15. His appeal is therefore, in my understanding, based on a point of law. It is one that is permissible within the confines of section 361(1) of the Criminal Procedure Code.

16. I allow the application and direct that the appeal be filed in 30 days.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF NOVEMBER 2023A.K. NDUNG’U..................................JUDGEI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR