[2013] KEHC 5217 (KLR)
The court found that the applicant failed to provide evidence of having requested the court proceedings or judgment within a reasonable time, as there was no letter on record from the applicant to the court requesting such documents, nor any correspondence from the court forwarding the proceedings. The court held...
Source-derived case information.
- Citation
- [2013] KEHC 5217 (KLR)
- Parties
- Applicant: Republic; Respondent: Francis Jere & 2 Others
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 107 of 2012
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Leave to Appeal Out of Time, Extension of Time, Acquittal Challenge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Francis Jere & 2 Others
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient cause for delay in filing the appeal out of time.
- 2 Whether the court should exercise its discretion under Section 349 of the Criminal Procedure Code to extend time for filing the appeal.
Ratio Decidendi
The court found that the applicant failed to provide evidence of having requested the court proceedings or judgment within a reasonable time, as there was no letter on record from the applicant to the court requesting such documents, nor any correspondence from the court forwarding the proceedings. The court held that the applicant did not satisfy the statutory requirements for extension of time under Section 349 of the Criminal Procedure Code, as the delay was not shown to be due to inability to obtain the necessary documents from the court. Consequently, the application lacked merit and was dismissed.
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
35 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
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REPUBLIC....................................................................................................APPLICANT
VERSUS
FRANCIS JERE & 2 OTHERS.............................................................RESPONDENT
RULING:
The application is brought by way of Notice of Motion under the provisions of Section 349 of the Criminal Procedure Code.
The Applicant being aggrieved by the acquittal seeks leave to file an appeal against the same but is out of time.
The Notice of Motion is dated the 9th day of August, 2012 and is deemed to have been filed in court on the 15th July, 2012 and the annexed supporting affidavit and Petition of Appeal are both dated the 9th August, 2012.
Counsel for the State submitted that he was relying on the grounds on the face of the Notice of Motion and on the Supporting Affidavit annexed thereto.
Counsel further submitted that the delay was occasioned in obtaining copies of the certified proceedings from the court and that when the same were received in June, 2011, the said proceedings were misplaced within their offices.
Counsel referred the court to the annexed Petition of Appeal and submitted that the appeal had overwhelming chances of succeeding particularly on the issue of identification.
Counsel urged the court to allow the application as the Applicant would be prejudiced were the application to be disallowed.
The provisions of Section 349 of the Criminal Procedure Code provide that;
“........An appeal shall be entered within fourteen days of the date of the order or sentence appealed against”.
The proviso to the Section allows the court to admit an appeal after the fourteen (14) day period has lapsed provided the court is satisfied that the delay was caused by the inability of the Appellant in obtaining the proceedings or judgment within reasonable time of application therefor.
The use of the word “may” in the proviso shows that this court has discretion to extend the time for filing of an appeal provided the Applicant satisfies the court that the proceedings were not obtained in reasonable time of having applied for the same.
I have perused the court record and have failed to sight any letter from the Applicant to the court requesting for the court proceedings and or the judgment.
Likewise, I have sighted no letter from the court made in June, 2011 advising or forwarding the proceedings to the Applicant.
This court finds no merit in the application as the Applicant has not satisfied this court that the delay was occasioned by failure to obtain the court proceedings or judgment within reasonable time of having applied to court therefor.
The application is hereby dismissed.
It is so ordered.
DATED and DELIVERED at Eldoret this 29th day of January 2013.
A.MSHILA
JUDGE
Coram: Before Hon. A Mshila J
CC: Andrew
Counsel for the Applicant: Kabaka Ex-parte
A.MSHILA
JUDGE