[2020] KEHC 69 (KLR)
The court found that the applicant was aware of the statutory time limit for filing an appeal and did not demonstrate that he was unable to obtain a copy of the judgment. The reason advanced—lack of funds to engage an advocate—was not considered sufficient, as the applicant could have filed the appeal in person. The...
Source-derived case information.
- Citation
- [2020] KEHC 69 (KLR)
- Parties
- Applicant: Police Constable James Loiborkerra; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Appeal 177 of 2019
- Procedural Posture
- Miscellaneous Criminal Appeal / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Criminal Appeals, Procedural Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Police Constable James Loiborkerra
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Appeal / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether inability to raise funds to engage an advocate constitutes good cause for delay in filing an appeal.
Ratio Decidendi
The court found that the applicant was aware of the statutory time limit for filing an appeal and did not demonstrate that he was unable to obtain a copy of the judgment. The reason advanced—lack of funds to engage an advocate—was not considered sufficient, as the applicant could have filed the appeal in person. The applicant's status as an adult and a police officer further undermined his claim that he needed family assistance to decide whether to appeal. The 14-month delay was deemed inordinate and unexplained, leading the court to conclude that the application was an afterthought and lacked merit.
Court Disposition
application dismissed
Orders
- The application for leave to file an appeal out of time is dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
MISCELLENOUS CRIMINAL APPEAL NO 177 OF 2019
BETWEEN
NUMBER 61603
POLICE CONSTABLE JAMES LOIBORKERA….APPLICANT
AND
REPUBLIC………………………………..…………RESPONDENT
RULING
The accused PC James Loiborkerra filed this application dated 6/11/2019 under the provisions of Article 50 of the Kenya 2010 Constitution and Section 349 of the Criminal Procedure Code, seeking an order for leave to file an appeal, against the judgment delivered on the 21/9/2018 out of time. He bases the application on grounds stated at the face of the application in particular that he was convicted on the offence of desertion from the Kenya National Police Service Contrary to Section 94(1) as read with Section 94(3) of the Act, and sentenced to a fine of Kshs.30,000/- that he duly paid.
The applicant by his affidavit in support depones that he was aware of the 14 days period upon which he ought to have filed the appeal, but that his intention was constrained due to family involvement to have an advocate engaged to represent him on the intended appeal, and that the family failed to raise the necessary funds to engage an advocate within the Statutuory period.
He states by his affidavit that it is only recently that he has been able to raise funds to engage a lawyer thus this application.
Section 349 of the Criminal Procedure code empowers the court to admit and or allow a party to file an appeal out of time if satisfied that the delay has been caused by the inability of the applicant or his advocate to obtain a copy of the judgment or order appealed against or for any good cause.
The applicant has not stated that for the period of 14 months after the judgment was delivered he was unable to obtain a copy of the judgment. Indeed he avers that he was not ignorant of the time limitation.
The applicant did not require funds beyond his reach to file, the petition of appeal in person. I am not persuaded that the reason he states as his family’s failure to raise funds to engage an advocate is a plausible and sufficient reason.
I agree with the Respondent’s averments in its replying affidavit sworn by Odero Vena Prosecution Counsel, on the 24/2/2019, that the applicant was not confined, and could have easily filed a notice of appeal, while awaiting to engage an advocate to argue the appeal.
It is further noted that the applicant is an adult, and a police officer, thus did not need advice by his family members as to whether or not to file the appeal. The decision lay with him all through, and the period of delay of 14 months is clearly inordinate, and devoid of reasonable explanation. He has failed to demonstrate his inability to file the appeal within the requisite period. I am persuaded that this application is, but an afterthought.
I find no merit in the application, and proceed to dismiss it.
Delivered, signed and dated at Nakuru this 6th Day of May 2020.
J.N. MULWA
JUDGE.