Mbiuki v Republic

Court of Appeal

4 March 2022

MMMSA Makhandia SKS ole Kantai KLKI Laibuta

1,199 words in judgment

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The bottom line

Kenya's Court of Appeal refused to revive an appeal dismissed 33 years earlier, because the applicant's explanation wasn't believable and the delay was far too long.

What this practically means

Executive summary

This is a ruling of the Court of Appeal at Nairobi (Makhandia, Kantai and Laibuta, JJ.A) on the applicant's application, filed 21 September 2021, to revive and restore his criminal appeal, which had been dismissed on 8 June 1988 under Rule 70 of the Court of Appeal Rules for want of attendance at the plenary hearing. The underlying second appeal challenged the High Court's decision of 30 April 1986, which had dismissed the applicant's appeal against conviction for stealing by persons employed in the public service contrary to Section 280 of the Penal Code, while reducing his sentence from five years to two years' imprisonment. The applicant sought restoration on the grounds that he was never notified of the hearing date, and explained the delay in moving the court by claiming he was a man of straw. Prosecution counsel pointed to the inordinate delay but left the application's fate to the court. The court applied the proviso to Rule 71, which permits restoration where the appellant was prevented by sufficient cause from attending. It disbelieved the applicant's claim of non-notification, noting that 33 years had elapsed and that a former police officer could not plausibly have remained unaware of his appeal's fate. It further held the 33-year delay inordinate and inexcusable, applying Allen v. Alfred Mcalphine & Sons. The application was dismissed. The 1988 dismissal of the appeal therefore stands undisturbed.

Key legal issues

Sufficient cause for non-attendance under the proviso to Rule 71

Holding

The applicant failed to demonstrate sufficient cause; his claim of never being notified was disbelieved given 33 years elapsed and his background as a former police officer.

Reasoning

The court found the applicant's assertion that he was unaware of the hearing date implausible. As a former police officer, greater diligence was expected; a simple letter to the registry would have revealed the dismissal. The court concluded he was less than candid, and relief cannot rest on deliberate falsehoods.

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Inordinate and inexcusable delay in mounting the restoration application

Holding

The 33-year delay in filing the application was inordinate and inexcusable and independently justified refusal of restoration.

Reasoning

Applying Allen v. Alfred Mcalphine & Sons, the court held there is no precise measure of inordinate delay, but the litmus test is whether the delay leads to an inescapable conclusion of inexcusability. The applicant was also evasive on when he received the court's letter, compounding the delay.

p. 2

Legal principles established

An appellant whose appeal was dismissed under Rule 70 may have it restored only if he satisfies the court that he was prevented by sufficient cause from appearing when the appeal was called for hearing.
A court cannot act in favour of a litigant on the basis of deliberate falsehoods; candour is a precondition to equitable relief such as restoration.
Inordinate delay, though without a precise measure, is that which leads the court to an inescapable conclusion that it is inordinate and inexcusable.

Court orders

1.The application to revive and restore the appeal dismissed for want of merit

Authorities

Legislation

Penal CodeSection 280
Court of Appeal RulesRule 70
Court of Appeal RulesRule 71 (proviso)

Cases cited (1)

Allen vs. Alfred Mcalphine & Sons
[1968] 1 All ER 543
There is no precise measure of inordinate delay; it must be beyond acceptable limits in the prosecution of cases.

On appeal from: Court of Appeal (dismissal of 8 June 1988, on second appeal from High Court of Kenya at Nairobi); Criminal Case No. 186 of 1986
Jurisdiction invoked: Proviso to Rule 71 of the Court of Appeal Rules (restoration of an appeal dismissed under Rule 70 for non-attendance)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Mbiuki v Republic", Case Analysis (2022). Criminal Appeal 186 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/432/eng@2022-03-04

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