[2006] KEHC 947 (KLR)
The court found that although the application for leave to appeal was filed late, the delay was not inordinate and was excusable due to the delay in supplying typed proceedings by the registry. The court also considered that the state counsel handling the application was not the one who prosecuted the case in the...
Source-derived case information.
- Citation
- [2006] KEHC 947 (KLR)
- Parties
- Applicant: Republic; Respondent: Tom Obuya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 36 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- leave to appeal out of time granted
- Legal Topics
- Leave to Appeal Out of Time, Delay in Filing Appeal, Discretion of Court, Criminal Acquittal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Tom Obuya
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the Republic has shown sufficient cause to warrant leave to appeal out of time against the acquittal of the Respondent.
- 2 Whether the delay in filing the appeal was inordinate and excusable under Section 349 of the Criminal Procedure Code.
Ratio Decidendi
The court found that although the application for leave to appeal was filed late, the delay was not inordinate and was excusable due to the delay in supplying typed proceedings by the registry. The court also considered that the state counsel handling the application was not the one who prosecuted the case in the lower court, which may have contributed to the delay. The court was satisfied that the intended appeal had arguable grounds and exercised its discretion to grant leave to the Republic to appeal out of time.
Court Disposition
leave to appeal out of time granted
Orders
- The Republic is granted leave of 10 days to lodge an appeal out of time against the decision of B. M. Mararo of 18th January 2006.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Misc Crim Appli 36 of 2006
REPUBLIC………………………..........................…..…………….………..APPLICANT
VERSUS
TOM OBUYA………………………......................……………...………RESPONDENT
RULING
The Republic sought for leave to appeal out of time against the decision of B. M. Mararo, District Magistrate (as he then was) to acquit Tom Obuya, the Respondent herein on 18th January 2006. The application is expressed in a motion dated 7th April 2006 filed pursuant to Section 349 of the Criminal Procedure Code. Vincent Sammy Monda filed an affidavit of the motion. The motion is strenuously resisted by the Respondent who swore a replying affidavit. It is the submission of Mr. Monda the learned state counsel that the Republic delayed in filing the appeal because there was a delay by the registry to supply the proceedings. There is a Certificate of Delay showing that it took time to secure the proceedings typed. The Republic is of the view that it has an arguable appeal hence it should be given a chance to argue the appeal to test the acquittal order. The learned state counsel has annexed a copy of the proposed petition of appeal annexed to the affidavit he swore in support of the motion.
Mr. Gikandi advocate for the Respondent on the other hand is of the view that the motion should be dismissed because the delay is inordinate. The learned advocate pointed out that there was no evidence that the Respondent ever applied for proceedings in time.
I have considered the rivaling submissions plus the pleadings placed before me. This court is given a wide discretion under Section 349 to admit an appeal out of time so long as good cause is shown. It is also a requirement under the section that there must be evidence that proceedings were applied and it took time for the same to be supplied within a reasonable time. Though there is no evidence that the Respondent ever applied for proceedings, there is evidence that there was a delay in supplying typed proceedings to the Republic. This is a regular occurrence in our court registries. I also take judicial notice of the fact that the learned state counsel was not the one who conducted the case on behalf of the Republic in the lower court hence it is possible that the matter was not brought to his attention in time. I have perused the proposed petition of appeal and I am satisfied that the intended appeal has arguable grounds. I also acknowledge the fact that the Respondent has raised serious concerns about the time taken in lodging this application. After a careful consideration I am convinced that the motion was filed a bit late but in my humble view the delay is not inordinate. The same is excusable due to the reasons I have just advanced.
In the end and for the above reasons, I grant leave of 10 days to the Republic to lodge an appeal out of time against the decision of B. M. Mararo of 18th January 2006.
Dated and delivered this 19th day of October 2006
J. K. SERGON
JUDGE
In open court in the absence of the parties.