[2023] KEHC 1527 (KLR)
The court found that the applicant's delay of eleven days in filing the appeal was satisfactorily explained by his financial constraints and reliance on relatives to secure legal representation. The court held that the right to appeal is fundamental and that the applicant's attempt to obtain counsel, which resulted...
Source-derived case information.
- Citation
- [2023] KEHC 1527 (KLR)
- Parties
- Applicant: Dennis Obiero alias Dady; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 21 (E023) of 2022
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application allowed with conditions
- Judges
- PN Gichohi
- Legal Topics
- Extension of Time to Appeal, Right of Appeal, Criminal Procedure, Delay Due to Financial Constraints
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dennis Obiero alias Dady
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant has shown good cause for extension of time to file an appeal out of time.
- 2 Whether financial constraints and reliance on relatives to hire an advocate constitute sufficient reason for delay in filing the appeal.
Ratio Decidendi
The court found that the applicant's delay of eleven days in filing the appeal was satisfactorily explained by his financial constraints and reliance on relatives to secure legal representation. The court held that the right to appeal is fundamental and that the applicant's attempt to obtain counsel, which resulted in the delay, constituted good cause under Section 349 of the Criminal Procedure Code. The respondent's concession to the application further supported the grant of leave. Consequently, the court exercised its discretion to allow the application, permitting the applicant to file and serve his Petition of Appeal within fourteen days from the date of the ruling.
Court Disposition
application allowed with conditions
Orders
- The applicant is granted leave to file and serve his Petition of Appeal within fourteen days from the date of this ruling.
Full Case Text
Judgment text and source record
23 paragraphs
Obiero v Republic (Miscellaneous Criminal Application 21 (E023) of 2022) [2023] KEHC 1527 (KLR) (6 March 2023) (Ruling)
Neutral citation: [2023] KEHC 1527 (KLR)
Republic of Kenya
In the High Court at Kisii
Miscellaneous Criminal Application 21 (E023) of 2022
PN Gichohi, J
March 6, 2023
Between
Dennis Obiero alias Dady
Applicant
and
Republic
Respondent
(Being an appeal against the conviction and sentence in Cr. Case No. S.O 04 of 2020 at CM’s Court at Kisii by Hon. Mac’candere delivered on the 19th day of November 2021)
Ruling
1. The Applicant has filed this undated application under a certificate of urgency on 1st December 2022 seeking orders that:-1. Spent2. Spent.3. The court allows the Applicant’s appeal filed out of time.4. Leave be granted to the Applicant for extension of time to appeal out of time due to his earlier intention to appeal.5. The Applicant be supplied with the lower court file to enable him properly prepare this appear.6. The Applicant be present during the hearing and determination of this application/appeal.
2. The application is supported by affidavit sworn by NAV/963/022/LIFE, Dennis Obiero Alias Dady. He states that he was charged with the offence of Defilement contrary to Section 8 (1) as read with Sec. 8(2) of the Sexual Offences Act No. 3 of 2006 in Criminal Case No. S.O 04 of 2020 at Kisii CM’s Court and sentenced to life imprisonment on 19th November 2021 by Hon. Mac’candere. Justifying the delay, he states that he relied on his relatives who promised to hire an advocate for him but they were unable due to financial constraint.
3. His payer to appear during the hearing of the application is spent and he did appear before this court during the hearing of the application and reiterated that his application be allowed as prayed.
4. The learned State Counsel Mr. Ayondo for the Prosecution, conceded to the application but intimated that he will respond to the appeal once the Applicant files it.
Determination 5. Having been convicted on and sentenced on 19th day of November 2021, the Applicant was clearly out of time by the time he filed the his notice of appeal, Petition of Appeal and this application on 1st December 2021. Section 349 of the Criminal Procedure Code provides :-“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 therefor.”
6. It is therefore for the Applicant to show good cause why he should be allowed to file an appeal out of time. His only ground for delay is his financial constraints. The relatives he relied on and who promised to hire an advocate for him did not make it. 7. The Applicant has a right to be represented by counsel if he so desires and his attempt to get one for purposes of the appeal, and which caused him this delay, is a satisfactory explanation in the circumstances. Further, the delay in this case is about Eleven (11) days which cannot be termed as unreasonable. Besides, the application for leave is conceded by the Respondent.
8. In the circumstances, the application is allowed to the extent and on condition that the Applicant files and serves his Petition of Appeal within Fourteen (14) days from the date of this ruling.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KISII THIS 6TH DAY OF MARCH, 2023. PATRICIA GICHOHIJUDGEIn the presence of:Dennis Obiero Alias Dady - ApplicantMr. Ayondo for RespondentIsindu, Court Assistant