[2006] KECA 212 (KLR)
The court found that there was no evidence the applicant was served with a hearing notice for the date when his appeal was dismissed for want of prosecution. The delay in filing the appeal was therefore not attributable to the applicant. The intended appeal was not frivolous, and the State did not oppose the...
Source-derived case information.
- Citation
- [2006] KECA 212 (KLR)
- Parties
- Applicant: Simon Mwangi Kirika; Respondent: The Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 1 of 2006
- Procedural Posture
- Criminal Application / Application for Extension of Time to File Notice and Memorandum of Appeal
- Outcome
- Application allowed.
- Judges
- CA Otieno
- Legal Topics
- Extension of Time, Appeal Out of Time, Dismissal for Want of Prosecution
- 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
Simon Mwangi Kirika
Applicant
The Republic
Respondent
Procedural Posture
Criminal Application / Application for Extension of Time to File Notice and Memorandum of Appeal
Legal Issues
- 1 Whether the applicant should be granted extension of time to file and serve Notice and Memorandum of Appeal out of time.
- 2 Whether the applicant was aware of the hearing date when his appeal was dismissed for want of prosecution.
- 3 Whether the delay in filing the appeal was excusable.
Ratio Decidendi
The court found that there was no evidence the applicant was served with a hearing notice for the date when his appeal was dismissed for want of prosecution. The delay in filing the appeal was therefore not attributable to the applicant. The intended appeal was not frivolous, and the State did not oppose the application. In these circumstances, the court exercised its discretion to allow the application for extension of time, granting the applicant fourteen days to file the Notice and Memorandum of Appeal.
Court Disposition
Application allowed.
Orders
- The applicant has fourteen (14) days from the date hereof to lodge Notice of Appeal and Memorandum of Appeal in this matter.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
Criminal Appli 1 of 2006
SIMON MWANGI KIRIKA …………………………..………… APPLICANT
AND
THE REPUBLIC ……………………………………………….. RESPONDENT
(An application for extension of time to file and serve Notice and Memorandum of Appeal out of time in an intended Appeal from the judgment of the High Court of Kenya at Nairobi (Msagha, J) dated 18th June, 2002
in
H.C. Cr. A. No. 1312 of 1998)
*********************
R U L I N G
The applicant in this application, Simon Mwangi Kirika, was charged with six counts in the subordinate court. He was convicted of all the counts and sentenced to serve three years imprisonment on the first two counts. He was sentenced to a fine of Kshs.2,000/= in default 3 months imprisonment on each of the other four counts. The imprisonment terms in respect of the first two counts were to run concurrently. He was later put on bail pending appeal as he appealed to the High Court against conviction and sentence. The appeal came up on the 18th June, 2002 and as the appellant did not appear before the court, Msagha, J dismissed the appeal stating:
“Appeal dismissed for want of prosecution”.
Later the appellant was traced and arrested. He was taken before Makhandia, J who ordered him to serve the remaining part of the sentence. He applied for setting aside of the order of Msagha, J. and re-instatement of the appeal in the High Court, but, the learned Judge (Makhandia, J) rightly rejected the same as there is no provision in the Criminal Procedure Code to the same. He has now come before this Court to have leave to file an appeal against the High Court decision dismissing his appeal extended.
The learned Senior State Counsel, Mr. Kaigai, does not oppose the application and in my mind rightly so.
The applicant says through his advocate that he was not aware of the hearing date of 18th June, 2002 when his appeal was dismissed for want of prosecution. There is no evidence that he was served with any hearing notice for that date. That being the case, although the time which has lapsed since then is clearly inordinate, one cannot blame him for the delay to file appeal in time against the superior court’s decision as there is no evidence that he was aware that the appeal had been decided till he was arrested and taken to court before Makhandia, J to start serving the sentence. In any case, in my mind, I think the intended appeal is not frivolous. It may have merits, although that is not mine to find at this stage. As the State also does not oppose, this application is allowed. The applicant has fourteen (14) days from the date hereof to lodge Notice of Appeal and Memorandum of Appeal in this matter. Orders accordingly.
Dated and delivered at Nairobi this 31st day of January, 2006.
J. W. ONYANGO OTIENO
………………………………
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR