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Court of AppealDismissedCriminal Application (extension of time) arising from HCCRC No. 08 of 2007 (Bungoma)· [2021] KECA 403 (KLR)

Timothy Barasa Majengo v Republic [2021] KECA 403 (KLR)

Court of Appeal of Kenya
23 July 2021
974 words in judgment
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The bottom line

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The Court of Appeal refused to revive a ten-year-old criminal appeal because the prisoner waited too long and gave no convincing reason for the delay.

What this practically means

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Executive summary

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This was a single-judge application in the Court of Appeal under rule 113 and Rule 4 of the Court of Appeal Rules in which Timothy Barasa Majengo, convicted of murder and sentenced to death on 25 October 2010 by Muchemi J in HCCRC No. 08 of 2007 at Bungoma (sentence later commuted to life in 2016), sought extension of time to lodge an appeal, or that his notice of appeal dated 22 June 2020 be deemed properly filed. Only the respondent, the DPP, filed submissions, opposing the application on the ground that the notice was filed ten years after conviction, far outside the fourteen-day window in section 349 of the Criminal Procedure Code. The respondent invoked the Supreme Court's Salat criteria for extension of time. The court, applying Rule 4 and the principles in Fakir Mohamed v Joseph Mugambi, held that the discretion is unfettered but fact-specific: the period and reason for delay, arguability of the appeal, prejudice and related factors are all relevant. It found that the applicant's explanations - a prison transfer and his family's failure to hire an advocate - did not clarify how the delay was occasioned; he had simply done nothing for ten years, and he did not exhibit a draft memorandum of appeal to show the intended appeal was arguable. The court held the delay inordinate and unexplained, dismissed the application and awarded costs to the respondent.

Key legal issues

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01

Whether the ten-year delay in filing the notice of appeal was adequately explained

Holding

The delay was inordinate and unexplained; the applicant's explanations (prison transfer and family's failure to hire an advocate) did not justify the delay

Reasoning

The court found the applicant took no steps for ten years after conviction and sentencing in 2010. The transfer from Bungoma Main Prison to Kibos Maximum Security Prison was not shown to have impeded filing, and the family's unfulfilled promise to hire counsel was not a satisfactory explanation. The applicant was held to have simply done nothing.

p. 2
02

Whether the intended appeal was arguable with chances of success

Holding

The applicant failed to demonstrate arguability because he did not exhibit a draft memorandum of appeal

Reasoning

Although Rule 4 confers an unfettered discretion, the court noted that the applicant did not exhibit a draft memorandum of appeal, which would have assisted in assessing whether the intended appeal was arguable with any chance of success. Without that material, the chances-of-success factor weighed against the applicant.

p. 2
03

Whether the discretion under Rule 4 should be exercised favourably

Holding

The discretion was exercised against the applicant; ten years was inordinately long and did not warrant a favourable discretion

Reasoning

Applying the Salat and Fakir Mohamed principles, the court balanced the period and reason for delay, arguability and prejudice. Given the inordinate ten-year delay, absence of satisfactory explanation and absence of a draft memorandum, the discretion could not be exercised in the applicant's favour, and the application was dismissed with costs.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the discretion of the court, and the applicant bears the burden of laying a basis for it
  • The court's discretion under Rule 4 is unfettered and the relevant factors include the period and reason for delay, arguability of the appeal, prejudice and the effect of delay on public administration
  • An applicant for extension of time should exhibit a draft memorandum of appeal to demonstrate that the intended appeal is arguable

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Penal Codesections 203 and 204
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 113
  • Criminal Procedure Codesection 349

Cases cited (6)

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others
    Supreme Court Application No. 16 of 2014 [2014] eKLR
  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    [2005] eKLR
  • Mutiso vs. Mwangi
    Civil Appl. NAI. 255 of 1997 (UR)
  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486
  • Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (UR)
  • Murai v Wainaina (No 4)
    [1982] KLR 38
On appeal from
High Court of Kenya at Bungoma
HCCRC No. 08 of 2007
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time), with the application brought under rule 113 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Timothy Barasa Majengo v Republic [2021] KECA 403 (KLR)", Case Analysis (2021). Criminal Application (extension of time) arising from HCCRC No. 08 of 2007 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/403/eng@2021-07-23

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