[2000] KEHC 239 (KLR)
The court held that the order for enlargement of time to file the appeal was granted on 18th June, 1999, and applying the general rule of computation of time, the ten days allowed expired on 28th June, 1999. The appeal was filed on 29th June, 1999, which was outside the period granted by the court. The court further...
Source-derived case information.
- Citation
- [2000] KEHC 239 (KLR)
- Parties
- Appellant: Republic; Respondent: Joel Cheruiyot Mitei
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 118 of 1999
- Procedural Posture
- Criminal Appeal / Judgment on Preliminary Objection Regarding Timeliness of Appeal
- Outcome
- appeal struck out as incompetent
- Legal Topics
- Appeal Out of Time, Leave to Appeal, Computation of Time
- 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
Appellant
Joel Cheruiyot Mitei
Respondent
Procedural Posture
Criminal Appeal / Judgment on Preliminary Objection Regarding Timeliness of Appeal
Legal Issues
- 1 Whether the appeal was filed within the time allowed by the court.
- 2 Whether admission of an appeal can regularise an appeal filed out of time.
- 3 Whether the appeal is competent if filed out of time without leave of court.
Ratio Decidendi
The court held that the order for enlargement of time to file the appeal was granted on 18th June, 1999, and applying the general rule of computation of time, the ten days allowed expired on 28th June, 1999. The appeal was filed on 29th June, 1999, which was outside the period granted by the court. The court further held that the admission of the appeal did not cure the defect of lateness, and an appeal filed out of time without leave of court is incompetent. Consequently, the appeal was struck out as it was filed out of time and without the requisite leave.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out.
Full Case Text
Judgment text and source record
12 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL APPEAL NO. 118 OF 1999
(Appeal against acquittal by the Principal Magistrate at Kericho in Criminal Case No. 2028 of 1998
REPUBLIC……………………………….………………..APPELLANT V E R S U S JOEL CHERUIYOT MITEI………………..……………RESPONDENT
J U D G M E N T
The respondent in this appeal was charged with the offence of manslaughter contrary to Section 202 of the Penal Code.
The charge was defective in that it did not include the penalty Section. But none of the parties addressed me on this issue. Be it it may, the respondent was acquitted.
The state did not appeal in time and filed Misc. Application No. 55 of 1999 for leave to appeal out of time. I heard the application on 18th June, 1999 and allowed the appellant to file his appeal within 10 days from that date. The appeal was not filed until 29th June, 1999. Mr. Mbeche’s submission is that the appeal was filed 12 days after the date of the order. Mr. Onderi said that the position was regularised by admission of the appeal. This argument cannot be correct. Admission of an appeal cannot make it any better nor does an admission of appeal make it competent if it is not.
The order for enlargement of time was given on 18th June, 1999. Generally in computation of time the first day is excluded and the last day included. Ten (10) days therefore should have been counted from 19th June, 1999. Consequently, ten days ended on 28th June, 1999. The appeal was filed on 29th June, 1999. As 28th June, 1999 was a working day the ten days allowed by the court expired on that day.
The appeal filed thereafter was filed out of time and without the leave of the court.The appeal before me is therefore incompetent. I do not have to go to the interesting arguments raised before me by the learned state counsel Mr. Onderi, for the Appellant and the learned Counsel Mr. Mbeche for the respondent.
The appeal is struck out.Dated and delivered at Nakuru this 24th day of March, 2000. D. M. RIMITAJUDGE24. 3.2000