[2023] KEHC 23063 (KLR)

Republic v Kamau (Miscellaneous Criminal Application E011 of 2022) [2023] KEHC 23063 (KLR) (5 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23063 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Criminal Application E011 of 2022

PM Mulwa, J

October 5, 2023

Between

Republic

Appellant

and

Gabriel Mburu Kamau

Respondent

Ruling

1. The motion dated 1st January 2022 before the court for determination is brought by the state counsel seeking leave to appeal out of time the decision of Hon. H.M. Ng’ang’a delivered on 30th November 2021.

2. In a nutshell the gist of the application is that the appeal on sentence has overwhelming chances of success and the delay in filing the appeal was occasioned by delay in obtaining typed proceedings.

3. The application is supported by the annexed affidavit of Gacharia Muriithi sworn on 1st January 2022, wherein he averred that the delay in the filing of the appeal was due to the delay in obtaining typed proceedings which were applied well within the 14-day time-frame. That a further delay was occasioned by counsel’s ill health and this led to delay in forwarding the proceedings to the Office of the Director of Public Prosecution for purposes of seeking advice on the possibility of appeal. He averred that it is in the interest of justice that the application be allowed.

4. The application was opposed by the Respondent Gabriel Mburu Kamau who swore a Replying Affidavit on 23rd May 2023 and stated that there was no proof of illness by the applicant. That the application was brought in bad faith with the aim of keeping the convict longer in prison. The Respondent stated that he is ailing and confined in isolation having contracted T.B. He urged the court to dismiss the application.

5. On 24th May 2023 at the hearing of the application, the court directed that the same be canvassed by way of written submissions. Parties were afforded sufficient time to file their submissions. On two occasions, the matter came up for a mention and the prosecution had not filed submissions. On 21st September 2023, Mr. Muriuki the state counsel informed the court that he had waived his right to file submissions. The convict/respondent told the court he had filed his submissions but the same were not in the court record at the time of writing this ruling.

6. I have considered the application and the affidavit opposing the application. The issue for determination is whether the application is merited.

7. From the record the convict was charged with grievous harm contrary to section 234 of the Penal Code. The particulars are on the 21st day of August 2018 along Karimeru River in Gatundu North sub-county within Kiambu county he did grievous harm to Stephen Kimani Kamau.

8. The convict pleaded not guilty to the charge. The case proceeded to full hearing. On 11th November 2021, the trial court found the respondent guilty and convicted him. The court noted that the convict was a first-time offender and was remorseful. The trial court considered the injuries sustained by the complainant and the fact that the weapon used to inflict the pain was a machete. The trial court further considered genesis of the incident was a land dispute and the complainant and the convict were related. As a deterrence, the trial court found a non-custodial sentence was not appropriate and sentenced the convict to 4 years in prison on 30th November 2021.

9. The time for filing an appeal and the power to extend time for appeal is provided for under Section 349 of the Criminal Procedure Code as follows:“349. An appeal shall be entered within fourteen 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 fourteen days has elapsed, 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 appealed against, and a copy of the record, within a reasonable time of applying to the court therefor.”

10. An applicant for an extension of time to file an appeal must demonstrate a good cause for extension of time to appeal. The Applicant herein stated that the delay was caused by the time taken to obtain typed proceedings as well as the period taken to get instructions on whether or not to appeal. The judgment was issued on 30th November 2021, while the current application was filed on 1st January 2022. The period cannot be said to be inordinate. However, I note the Applicant has not been keen on prosecuting the application.

11. I have considered the memorandum of appeal and note that the applicant intends to appeal the 4 - year prison sentence of the accused. He averred the sentence was lenient and not commensurate to the offence.

12. At the center is a disputed land and the convict is apprehensive that the applicant is colluding with the complainant to keep him in prison and sell the land.

13. Having considered the persuasive arguments and indeed all material placed before the court, I find that the Applicant has not sufficiently demonstrated it warrants the orders for extension to appeal out of time.

14. In the circumstances therefore, the application dated 1st January 2022 is found to have no merit and the same is dismissed.

It is so ordered.

RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF OCTOBER 2023. ........................P.M. MULWAJUDGEIn the presence of:Kinyua/Duale – court assistantsMr. Gacharia – for ApplicantRespondent in person – present from Thika Main prison