Njoroge v Republic [2022] KEHC 16098 (KLR)

Njoroge v Republic (Criminal Miscellaneous Application E026 of 2022) [2022] KEHC 16098 (KLR) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16098 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Miscellaneous Application E026 of 2022

RB Ngetich, J

December 1, 2022

Between

Fedelis Wambui Njoroge

Appellant

and

Republic

Respondent

Ruling

1. This is a ruling on notice of motion dated June 22, 2022 filed by the appellant seeking leave to appeal out of time and an order to be admitted on bail pending the determination of appeal.

2. The application is premised on the grounds that the appellant was unrepresented in the trial court and was sentenced on February 15, 2022. Reason given for delay in filing appeal is delay in obtaining typed proceeding.

3. The application is supported by the affidavit of the applicant Fidelis Wambui Njoroge sworn on June 22, 2022 in which she deponds that she was sentenced to three (3) years for the offence of making a document without authority contrary to section 357 of the PenalCode.

4. Mr Kasyoka the state counsel was not opposed to the application due to the length of the sentence meted.

5. Counsel for the applicant submitted that the applicant was sentenced to three (3) years imprisonment on all eight (8) counts without an option of a fine and being aggrieved by the sentence of the court, she intends to appeal against the sentence.

6. Counsel further urged this court to admit the applicant to bail pending appeal as per section 357 of the Criminal Procedure Code as there is a possibility of delay in the hearing of the appeal; the appellant is apprehensive that due to the possibility of delay, she will have served the three (3) years sentence before the appeal is determined.

7. Counsel further submitted that the appellant has demonstrated exceptional or unusual circumstances as she was taking care of her children and grandchildren before the sentence and the children are struggling to make ends meet and take care of each other.

Analysis and Determination 8. I have considered the application and the submissions by the appellant. The application as filed is unopposed by the prosecution.

Leave to Appeal Out of Time 9. The applicant’s explanation for delay is due to delay in acquiring the proceedings of the trial court. Section 349 of the Criminal Procedure Codeprovides as follows: -“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.”

10. The appellant has stated that she was unrepresented and had challenges obtaining copies of the proceedings which resulted in delay in filing the appeal. This has not been disputed by the state counsel and therefore find that the delay in filing the appeal has been sufficiently explained and I proceed to allow the application to appeal out of time.

11. On application for bond pending appeal, the state counsel did not oppose the application in view of the sentence imposed.

12. However, on perusal of this miscellaneous application file, I note that the appellant did not avail copies of the proceedings of the trial court and the judgment neither has the court file been availed. I have therefore not been able to consider whether the appeal has a high chance of success.

13Final orders:-1. The appellant is granted leave to appeal out of time.2. Appeal file to be opened by the registry and a copy of application herein be placed in the appeal file for the court to consider the second limb of the application-bond pending appeal.3. The appeal file to be placed before me for application of bond pending appeal once the trial court proceedings and judgment have been filed.

RULING DELIVERED, DATED AND SIGNED VIRTUALLY AT KIAMBUTHIS 1ST DAY OF DECEMBER, 2022. RACHEL NGETICHJUDGEIn the Presence of:Kinyua/Martin – Court AssistantMr. Mwangi for ApplicantApplicant – PresentMr. Kasyoka for State