Beliward Azere v Republic

Court of Appeal of Kenya

31 March 2006

ROR.S.C Omolo SBS.E.O Bosire PWP.N. Waki

1,126 words in judgment

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The bottom line

Kenya's Court of Appeal refused to revive a criminal appeal dismissed thirteen years earlier, confirming that restoration applications must be filed within a reasonable time.

What this practically means

Executive summary

This is a ruling of the Court of Appeal at Kisumu (Omolo, Bosire and Waki, JJA) on an application by Beliward Azere to restore Criminal Appeal No. 155 of 1990, which had been dismissed on 22nd March 1993 under rule 70(4) of the Court of Appeal Rules for want of prosecution. The applicant, a former assistant chief convicted of stealing by a person employed in the public service and sentenced to eighteen months imprisonment, had his first appeal summarily rejected by the High Court (Osiemo, J) under section 352(2) of the Criminal Procedure Code. The court held that although the proviso to rule 70(4) prescribes no time limit for restoration applications, such an application must be made within a reasonable time, invoking section 57 of the Interpretation and General Provisions Act. The applicant knew of the dismissal in 1993 but wrote to the Deputy Registrar only in June 2003 and filed the motion in 2005 - a delay of some thirteen years. His explanation, that former advocates had been dishonest, was rejected because the record showed he appeared in person throughout and no advocate was involved. He also failed to show he was prevented by sufficient cause from appearing when the appeal was called on, and the court suspected his motive was to bargain with his former employer. The motion was dismissed. No costs order was made. The decision binds subordinate courts and the High Court on the reasonable-time requirement for restoration applications under rule 70(4).

Key legal issues

Reasonable time for a restoration application under rule 70(4)

Holding

In the absence of a prescribed time limit, restoration must be sought within a reasonable time; a delay of some thirteen years was inordinate and unexplained.

Reasoning

The proviso to rule 70(4) sets no time limit, so the general principle in section 57 of the Interpretation and General Provisions Act applies: anything to be done without prescribed time must be done without unreasonable delay. The applicant knew of the dismissal in 1993, wrote only in 2003, and filed the motion two years later.

p. 2

Sufficient cause for non-appearance

Holding

The applicant failed to show he was prevented by sufficient cause from appearing; the record showed he appeared in person throughout and no advocate was involved, so the blame-shift to advocates failed.

Reasoning

The court examined the record of Criminal Appeal No. 155 of 1990 and found the applicant was never represented by an advocate; all hearing notices were directed at him personally. The alleged tricks and dishonesty of advocates were therefore a mere excuse, and the court also doubted his motive, finding he sought restoration only to bargain with his former employer.

p. 2

Legal principles established

Where a rule or statute prescribes no time limit for an application, it must be made within a reasonable time
An applicant for restoration under the proviso to rule 70(4) must show he was prevented by sufficient cause from appearing when the appeal was called on

Court orders

1.The notice of motion dated 10th August, 2003 and lodged in the Court on the same day be and is hereby dismissed

Authorities

Legislation

Penal Codesection 280
Criminal Procedure Codesection 352(2)
Interpretation and General Provisions Actsection 57
Court of Appeal Rulesrule 70(4)

On appeal from: High Court of Kenya at Kakamega; H.C.Cr. Appeal No. 37 of 1990
Jurisdiction invoked: Rule 70(4) of the Court of Appeal Rules (application for restoration of an appeal dismissed for want of prosecution)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Beliward Azere v Republic", Case Analysis (2006). Criminal Appeal 10 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/299/eng@2006-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.