[2013] KEHC 2773 (KLR)
The court found that while there was some delay attributable to the applicant between the date the proceedings were supplied and the filing of the application, the primary cause of delay was the late supply of the proceedings and ruling by the court. The delay was not found to be unreasonable in the circumstances,...
Source-derived case information.
- Citation
- [2013] KEHC 2773 (KLR)
- Parties
- Applicant: Republic; Respondent: Issac Rodrot; Respondent: Steffano Ucceli
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 19 of 2013
- Procedural Posture
- Miscellaneous Criminal Application / Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Legal Topics
- Leave to Appeal Out of Time, Acquittal Orders, Certificate of Delay, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Issac Rodrot
Respondent
Steffano Ucceli
Respondent
Procedural Posture
Miscellaneous Criminal Application / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has shown sufficient cause for extension of time to file an appeal against the acquittal order.
- 2 Whether the delay in filing the appeal was excusable under section 349 of the Criminal Procedure Code.
Ratio Decidendi
The court found that while there was some delay attributable to the applicant between the date the proceedings were supplied and the filing of the application, the primary cause of delay was the late supply of the proceedings and ruling by the court. The delay was not found to be unreasonable in the circumstances, and the applicant had demonstrated sufficient cause for the extension of time. Accordingly, leave to appeal out of time was granted, and the draft memorandum of appeal was deemed as filed.
Court Disposition
leave to appeal out of time granted
Orders
- Leave to appeal out of time is granted as prayed.
- The annexed draft memorandum of appeal is deemed as filed.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CRIMINAL APPLICATION NO. 19 OF 2013
REPUBLIC ….............................................................………..APPLICANT
VERSUS
ISSAC RODROT ……….……...........................1ST RESPONDENT
STEFFANO UCCELI …......................................2ND RESPONDENT
RULING
This application is brought under section 349 of the Criminal Procedure Code seeking in the main leave to appeal out of time against the order of acquittal of the two Respondents dated 7th February, 2013.
The grounds are that the Director of Public Prosecutions being aggrieved by the acquittal of the two Respondents is desirous of appealing against it under section 348A of the Criminal Procedure Code.
Further that the prosecution upon reading the ruling applied for copies of the proceedings and ruling for purposes of filing an appeal.
They were supplied with the ruling on 7th February, 2013 but without the proceedings which were later supplied on 27th June, 2013.
Further that the delay to file the appeal on time was caused by delay in typing.
The application is opposed on the grounds that the delay was inexcusable and inordinate and the blame should not be assigned to the Court in that the certificate of delay clearly indicates that the request for the proceedings and ruling was made vide a letter dated 16th April, 2013 and the ruling and proceedings ending on 10th May, 2013 were supplied to the prosecution on 27th June, 2013.
Section 349 of the Criminal Procedure Code provides,
“An appeal shall be entered within 14 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 14 days has lapsed 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 appeal against, and a copy of the record within a reasonable time of applying to the Court therefor”.
I have perused the certificate of delay and noted that the request for the proceedings and ruling was made on 16th April, 2013 and they were supplied on 27th June, 2013. While there was delay on the part of the Court which was explained in the certificate the applicant is also partly to blame for lack of activity between 27th June, 2013, to 24th July, 2013. However, I do not find the delay to be unreasonable and leave is granted as prayed, the annexed draft memorandum of appeal is deemed as filed.
Ruling read and delivered in open Court this 13th day of August, 2013.
In the presence of:-
Learned State Counsel Miss Ogweno
Learned Counsel for the Respondent Mr. Njuguna
Court clerk Mr. Musundi
…................
M. MUYA
JUDGE
13TH AUGUST, 2013
Njuguna: I am making for an application for stay pending appeal. I am also applying certified copies of the ruling.
Miss Ogweno: No objection
Court: Certified copies of the ruling to be furnished to the parties. There will be a stay but only for ten (10) days.
…...............
M. MUYA.
JUDGE
13TH AUGUST, 2013