Mutia Musingi v Republic [2013] KEHC 1437 (KLR)

No. 121/2013

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CRIMINAL MISC. APPLICATION NO.142 OF 2012

MUTIA MUSINGI.....................................APPLICANT

VERSUS

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

RULING

The application filed herein on 23rd July, 2012 is for leave to appeal out of time.  It is supported by an affidavit sworn by the applicant who states that his relatives failed to hire a lawyer to represent him and his appeal has a high chance of succeeding.

The applicant was charged with an offence of defilement contrary to Section 8 (1) (2) of the Sexual Offences Act, 2006 on 8th July, 2009.  He pleaded guilty to the charge, was convicted and sentenced to 20 years imprisonment.  Being aggrieved by the decision of the court he lodged an appeal on the 23rd June 2009.  The appeal was assigned a number 170 of 2009.  It was admitted to hearing on the 22nd March, 2010.

The matter came up for hearing on the 16th February, 2012.  The learned state counsel, Mrs.Gakobo notified the court that she would be seeking an enhancement of sentence since the appellant had been convicted pursuant to a Section of the Act that provided for a mandatory life imprisonment.  The appellant had been convicted of defiling a complainant aged 4 years.  Following the application by the State pursuant to provisions of Section 354 of the Criminal Procedure Code, the appellant withdrew the appeal.

He waited for five (5) months then filed the current application.  The learned state counsel Mr. Mwangi while alluding to the previous appeal nonetheless did not oppose the application.

Time within which an appeal is to be instituted is limited by statute to 14 days after the order or sentence is passed.  However, if there is a good reason why the applicant did not file the appeal within the prescribed time, the court can grant leave to appeal out of time (see Section 349 of the Criminal Procedure Code)

This is a case where the applicant initially appealed and withdrew the appeal.  He has absolutely no reason to convince this court to grant him leave to appeal in this particular matter.  He should have applied for reinstatement of the initial appeal.  What he has done is tantamount to an abuse of the due process of the court.

In the premises, the application lacks merit.  Accordingly, I dismiss it.

DATED, SIGNED and DELIVEREDat MACHAKOS this 6THday of NOVEMBER, 2013

L.N. MUTENDE

JUDGE