[2006] KEHC 396 (KLR)
The court held that the application for extension of time to file an appeal was fatally defective as it was brought under section 349 of the Penal Code, which does not provide for such extension. The correct legal basis for such an application is the Criminal Procedure Code. The court emphasized that procedural...
Source-derived case information.
- Citation
- [2006] KEHC 396 (KLR)
- Parties
- Applicant: Republic; Respondent: John Shikuku Amedo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 103 of 2005
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
- Outcome
- application rejected
- Judges
- K Bauni
- Legal Topics
- Extension of Time, Appeals Process, Procedural Errors
- 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
John Shikuku Amedo
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the court can grant an extension of time to file an appeal when the application is brought under the wrong statutory provision.
- 2 Whether section 349 of the Penal Code provides for extension of time to appeal.
Ratio Decidendi
The court held that the application for extension of time to file an appeal was fatally defective as it was brought under section 349 of the Penal Code, which does not provide for such extension. The correct legal basis for such an application is the Criminal Procedure Code. The court emphasized that procedural compliance is mandatory, especially where the applicant is represented by counsel and not a layman. As a result, the court rejected the application for extension of time.
Court Disposition
application rejected
Orders
- The application for extension of time to file an appeal is rejected.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Crim Misc Appli 103 of 2005
REPUBLIC …………………….…………………………….. APPLICANT
VERSUS
JOHN SHIKUKU AMEDO …………...…..………………. RESPONDENT
(From original criminal case No. 208 of 2003 of the PM’s court at Migori)
RULING:
The state applies for extension of time in which to file an appeal.
Respondent was charged for offence of assault contrary to s.251 Penal Code. 6 witnesses were called. The Respondent was acquitted under s.210 Penal Code for lack of case to answer. It was submitted that ruling was on 12th July 2005. Application for proceedings was made on the same day and deposit paid. However they were supplied on 15th November 2005.
It was pointed out that the application was brought under the wrong provision of the law. It is brought under s. 349 of the penal code. That section do not provide for extension of time.
Mr. Kemo conceded that indeed the application was under the wrong provisions of the law. It should have been brought under the criminal procedure code and not the Penal Code.
That is very clear from a reading of the two Acts. Court cannot excuse bringing of the application under the wrong provisions. It was not drawn by a layman.
In the circumstances the application is rejected.
Dated 16th March 2006.
KABURU BAUNI
JUDGE
Cc – Mobisa
Mr. Chirchir for State