Jared Bichanga v Republic [2022] KEHC 2301 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

MISC. CRIMINAL APPLICATION NO. 1 OF 2019

(CORAM: F.M. GIKONYO J.)

JARED BICHANGA........................APPLICANT

-VERSUS-

REPUBLIC..................................RESPONDENT

RULING

[1]. In an undated application filed on 2nd January 2019, the Applicant is seeking for leave to file his appeal out of time.

[2]. The applicant was convicted on 16th March 2011 and sentenced to serve 20 years’ imprisonment for defilement contrary to Section 8(1) read with Section 8(3) Sexual Offence Act No. 3 of 2006.

[3]. The applicant’s application is supported by five grounds that are set out in the petition of appeal and supporting affidavit.

[4]. The major ground in support of his application is that he relied on his relatives who promised to hire a lawyer but could not do so due to financial constraints.

[5]. During the oral hearing of his application the applicant submitted that he was convicted in 2011, he filed an appeal at Nakuru, he waited for his appeal to be called out but was never called out. He further stated that he did not have the power to follow his appeal and insisted that he filed his appeal in good time.

[6]. The prosecution opposed the application arguing that the applicant has taken too much time to apply for extension of time and no reasonable grounded has been provided.

ANALYSIS AND DETERMINATION

Issue

[7]. A single issue for determination in the application is: -

Whether the applicant has made out a case for extension of time to file appeal.

[8]. According to Section 349 Criminal Procedure Code: -

“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)

[9]. The section provides for discretion to admit appeal filed out of time if good cause has been shown by the applicant. Good cause includes; 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.I have deliberately used the word includes, for section 349 of the CPC is not and cannot be exhaustive. Similarly, and for completeness of understanding, good cause in section 349 of the CPC does not extend to the merits or otherwise of the intended appeal. On this latter proposition, I am content to cite the case Republic –v- Ranchandra Shankaria Bhatt (2017) eKLR where it was stated:

“12. In Misc. Criminal Application No.10/14 - R vs Jane  Njeri Mwangi,  Ngaah J, in granting the applicant leave to file an  appeal out of time, observed as follows:

“The respondent’s counsel’s submission that the appeal does not raise any triable issue either in law or fact does not appear to have any legal basis; this is because under section 349 of the Criminal Procedure Code, the only consideration this court must give regard to in exercising its discretion to grant leave to file the appeal out of time is  “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. Whether the appeal will succeed or not does not seem to count at this stage.” [underlining mine]

Applying the test

[10]. Although the basis of the application seems to be that the applicant did not obtain the judgement and proceedings in time to enable him to file appeal, his argument or explanation towards that end that, he relied on his relatives who promised to hire a lawyer but could not do so due to financial constraints, completely detracts from the ground cited. I will provide ample reasons for this position.

[11]. The applicant claims to have filed an appeal at Nakuru of which he waited to be called but in vain. He provided nothing go substantiate or support the allegation. Again, the applicant does not claim that he applied for, but was not provided by the court with proceedings and judgment or in good time. His has generally claimed that he relied on his relatives to hire a lawyer but could not engage one due to financial inability. It is surprising it took him seven years to realize that his relatives did not file the appeal or his appeal at Nakuru was not filed. Notably, proceedings in criminal cases is provided and appeal is filed at no cost.

[12]. Matters cited by the applicant do not fit or pass the test of the law or Section 349 of the Criminal Procedure Code. The applicant simply went to slumber and is now engaged in an extravagant veneration seven years later.

[13]. The upshot of this analysis is that the court is not satisfied that the applicant has shown any or any good cause for not filing appeal within the time prescribed under Section 349 of the CPC.

[14]. Accordingly, I find the application herein is to be without merit, and it is hereby dismissed. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 14TH DAY OF FEBRUARY, 2022

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F. GIKONYO M.

JUDGE

In the presence of:

1.  Applicant

2.  Torosi  for Respondent

3. Kasaso - CA