Rex v Tiaga and Another (Cr. App.. 36/1931.) [1931] EACA 25 (1 January 1931)

## APPELLATE CRIMINAL.

Before SIR J. W. BARTH, C. J., and DICKINSON, J.

REX (Respondent) (Original Prosecutor)

$1.$ SANJA s/o TIAGA

$2.$ KODHETA s/o NDIAGA

(Appellants) (Original Accused).

Cr. App. 36/1931.

Criminal Procedure Code, section 335 (limitation) and section 336 (petition of appeal).

Held (14-7-31):—That there is no authority for a joint appeal by<br>convicts sentenced in the same original trial, and that section 335 of the Criminal Procedure Code is not to be read with section 12 of the Indian Limitation Act, 1877.

Figgis, K. C., for Appellants.

Doran, Crown Counsel, for Crown.

The two accused were on the 1st June, 1931, convicted before the Resident Magistrate, Nairobi, of the offences of Stock Theft under section 255 of the Penal Code and causing bodily harm under section 229 of the Penal Code. On the former charge they were each sentenced to three years imprisonment with hard labour and a fine of Sh. 1,600, or one year's imprisonment with hard labour in default, and on the second charge they were each sentenced to one year's imprisonment with hard labour, both sentences to run concurrently.

A joint appeal was filed before the Supreme Court on 4th July, 1931. No application for leave to appeal out of time was filed and this matter was set down for a ruling of the Court on two preliminary points raised by the Registrar on the filing of the appeal, viz. (1) that there appeared to be no legal sanction for a joint appeal, and (2) that the appeal had been filed out of time.

Figgis.—The Indian Limitation Act, 1877, is an applied Act and must be read with section 335 of the Criminal Procedure Code. Under the Act the period of limitation prescribed for an appeal should not include the time requisite for obtaining a copy of the judgment on which it is founded. As regards the question of a joint appeal there is nothing in the Criminal Procedure Code contrary to a joint appeal by persons jointly tried.

Doran.—There is an inherent power in the Court to extend the time in which a notice of appeal or notice of application for leave to appeal may be given. Quoted Archbold 27th Ed., 313, and Rex v. Rigby, 27 Cox, 411. There is no provision in the Criminal Procedure Code forbidding a joint appeal although the terminology employed in section 336 of the Code would appear to preclude a joint appeal.

The following Order was made by Sir Jacob Barth, Chief Justice: —

ORDER.—The appeal of each convict should be filed separately. There is no authority for a joint appeal by convicts sentenced in the same trial, and it is obvious that in many cases such a procedure would not be in the interests of the appellants.

With regard to the limitation of time within which criminal appeals should be filed section 335 of the Criminal Procedure Code provides that such appeals should be filed within thirty days of the date of the order or sentence appealed against. The Indian Limitation Act, 1877, has been applied to the Colony. Under that Act the limitation of the time in which a criminal appeal may be lodged in a High Court differs from the time provided by section 335 Criminal Procedure Code. Section 12 of the Indian Limitation Act, 1877, enacts that the time requisite for obtaining a copy of the judgment on which the decree sentence or order appealed against is founded shall be excluded from the period of limitation. The question arises whether or not this section now applies to criminal appeals to this Court. The Criminal Procedure Code section 335 enacts, without any reference to the applied Indian Limitation Act, that every appeal shall be entered within thirty days of the date of the order or sentence appealed against. The corresponding provision of the repealed Criminal Procedure Ordinance (Cap. 7 of the Revised Laws of Kenya) section 327, was followed by a section applying the provisions of the Indian Limitation Act, 1877, to all criminal appeals except so far as the period in which appeals shall be entered was prescribed.

In my judgment section 335 of the present Criminal Procedure Code is definite and exclusive. It does not purport to amend the Limitation Act so far as the period prescribed for criminal appeals is concerned, and must in my view be taken to replace entirely such Act so far as the limitation prescribed for criminal appeals is concerned. It therefore follows that the time for obtaining a copy of the judgment or order cannot be excluded from the period of thirty days and that the petition is out of time.

DICKINSON, J., concurred.