[2019] KEHC 10019 (KLR)
The court found that the applicant's explanation—that he was unable to file the appeal in time due to incarceration and loss of contact with relatives who were to instruct an advocate—constituted good cause under section 349 of the Criminal Procedure Code. The court acknowledged that it is not improbable for...
Source-derived case information.
- Citation
- [2019] KEHC 10019 (KLR)
- Parties
- Applicant: Titus Mugambi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application Application132 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- A Mabeya
- Legal Topics
- Extension of Time, Appeals Out of Time, Good Cause Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Titus Mugambi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has shown good cause to warrant extension of time to file an appeal out of time under section 349 of the Criminal Procedure Code.
- 2 Whether the reasons advanced for the delay in filing the appeal are satisfactory.
Ratio Decidendi
The court found that the applicant's explanation—that he was unable to file the appeal in time due to incarceration and loss of contact with relatives who were to instruct an advocate—constituted good cause under section 349 of the Criminal Procedure Code. The court acknowledged that it is not improbable for relatives to abandon someone who has been jailed, and despite the long delay since October 2017, the reasons advanced were deemed satisfactory. The court exercised its discretion to excuse the delay and granted leave for the appeal to be filed out of time.
Court Disposition
application allowed
Orders
- The application for leave to appeal out of time is allowed.
- The petition of appeal annexed to the application is deemed to have been filed with leave.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
MISC CRIMINAL APPLICATION NO. 132 OF 2018
TITUS MUGAMBI.............................................APPLICANT
-VS-
REPUBLIC.......................................................RESPONDENT
R U L I N G
1. Before me is a Motion on Notice brought under section 349 of the Criminal Procedure Code, Cap 75 of the Laws of Kenya by which the applicant seeks to be allowed to appeal out of time. The application is based on the grounds on the face of the Motion and the affidavit in support thereof sworn by the applicant.
2. The grounds are that; the applicant was charged with the offence of rape contrary to section 3 (1) (a) (c) of the Sexual Offences Act and that after conviction and sentence, he did not lodge the appeal within the 14 days stipulated by law. That because of incarceration, he lost contact with his relatives who had promised to instruct an advocate to lodge an appeal on his behalf. That for that reason, he failed to lodge the appeal on time.
3. When the matter came up for hearing on 10th December 2018, Mr. Kiarie for the State did not oppose the application. I have carefully considered the affidavit in support. Section 349 of the Criminal Procedure Code CAP 75 of the Laws of Kenya provides:-
“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 therefore (Emphasis added)
4. In the present case, the applicant told the court that he was unable to file the appeal within time because his relatives had promised to contract an advocate to file an appeal on his behalf but they did not. That because he was in custody, he lost contact with them and could not communicate with them.
5. All that is required of an applicant under section 349 of the Criminal Procedure Codeis to show good cause. Good cause is defined in Black’s Law Dictionary 10th Edition as a legally sufficient reason. To my mind, it is not improbable that relatives can abandon their own who has been jailed. Although the time taken by the applicant to make the present application is long, (since October, 2017), to seek the present remedy, for the reasons advanced I will excuse the delay.
6. Accordingly, I find the reasons advanced by the applicant to be satisfactory. I allow the application and direct that petition of appeal annexed to the application is hereby deemed to have been filed with leave. Let the same be served upon the Director of Public Prosecution accordingly.
DATED and DELIVEREDat Meru this 14th day of February, 2019.
A. MABEYA
JUDGE