[2018] KEHC 1292 (KLR)
The court found that Section 348A(1) of the Criminal Procedure Code expressly grants the prosecution the right to appeal against an acquittal. Section 349 requires such appeals to be filed within 14 days, but also empowers the court to extend this period for good cause. Upon considering the application and being...
Source-derived case information.
- Citation
- [2018] KEHC 1292 (KLR)
- Parties
- Applicant: Republic; Respondent: Elkana Ombaire
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 27 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- EM Muchoki
- Legal Topics
- Leave to Appeal Out of Time, Prosecution Right of Appeal, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Elkana Ombaire
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the prosecution has a right to appeal against an acquittal under Section 348A(1) of the Criminal Procedure Code.
- 2 Whether the court should grant leave to file an appeal out of time under Section 349 of the Criminal Procedure Code.
Ratio Decidendi
The court found that Section 348A(1) of the Criminal Procedure Code expressly grants the prosecution the right to appeal against an acquittal. Section 349 requires such appeals to be filed within 14 days, but also empowers the court to extend this period for good cause. Upon considering the application and being satisfied that good cause was shown for the delay, the court exercised its discretion to allow the application for leave to appeal out of time. The applicant was granted fourteen days from the date of the order to file and serve the appeal.
Court Disposition
application allowed
Orders
- Leave to appeal out of time is granted to the applicant.
- The appeal shall be filed and served within fourteen days of this order.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAMIRA
MISC. CRIMINAL APP. NO. 27 OF 2018
REPUBLIC........................................................APPLICANT
=VRS=
ELKANA OMBAIRE..................................RESPONDENT
(An application from the Original Judgement of Hon. P. W. Wasike – RM
in Keroka Criminal Case No. 439 of 2015)
RULING
The application dated 26th July 2018 for leave to appeal out of time has been considered. Section 348 A (1) of the Criminal Procedure Code provides for the prosecution’s right of appeal against an acquittal, order of the refusal or order of dismissal. The Section states: -
“348 A. (1) When an accused person has been acquitted on a trial held by a Subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a Subordinate court or High court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.”
Section 349 of the Criminal Procedure Code requires that such an appeal to be filed within 14 days of the order or sentence appealed against. However, the proviso thereto gives power to the court to which the appeal is made to extend that period for good cause. This court if satisfied that there is good cause to extend the period for filing the appeal and accordingly the application is allowed. The appeal shall be filed and served within fourteen days of this order.
Signed, dated and delivered in open Court this 20th day of December 2018.
E. N. MAINA
JUDGE