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Court of AppealPartially AllowedCriminal Appeal E056 of 2021· [2022] KECA 922 (KLR)

Simon Moyi Makari v Republic

Court of Appeal of Kenya

24 June 2022

PKP. O. Kiage MNMumbi Ngugi FTF. Tuiyott

1,008 words in judgment

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The bottom line

What this practically means

Executive summary

The appellant was convicted of defilement in the Senior Principal Magistrate's Court at Mumias and sentenced to ten years' imprisonment. He applied to the High Court at Kakamega (Farah Amin J) for extension of time to file an appeal out of time, deeming of the attached appeal as properly filed, and bond pending the intended appeal. By a ruling dated 28th May 2021, the Judge dismissed the application, holding that urgency was not demonstrated, that the conviction rested on DNA evidence, and that no grounds were advanced for interfering with the sentence. On appeal, the State conceded, submitting that a four-month delay was short and should have been considered. The Court of Appeal (Kiage, Ngugi and Tuiyott, JJA) held that the learned Judge erred by failing to consider section 349 of the Criminal Procedure Code, which governs extension of time for criminal appeals, and by instead assessing the merits of an appeal that had not yet been filed or argued. The Court further found that the appellant was not afforded an opportunity to argue his application, rendering the decision erroneous and a misdirection. The appeal was allowed, the High Court orders set aside, and the application remitted to the High Court at Kakamega for mention within fourteen days for hearing directions. The Court declined to address the merits of the evidence or sentence, which lie outside its jurisdiction at this stage. No costs order was recorded.

Key legal issues

Correct approach to an application for extension of time under section 349 of the Criminal Procedure Code

Holding

The court must consider the statutory provision and the cause shown for the delay; it errs by venturing into the merits of the intended appeal.

Reasoning

Section 349 permits admission of an appeal after fourteen days for good cause, mandatorily where the delay arises from inability to obtain a copy of the judgment or record. The High Court ignored this provision and instead assessed the merits of an appeal not yet filed or argued, reaching a decision that was erroneous and a misdirection warranting interference on appeal.

p. 2

Right to a fair hearing in interlocutory criminal applications

Holding

Deciding an unargued extension-of-time application without hearing the applicant violates the right to a fair hearing and renders the decision erroneous.

Reasoning

The High Court determined urgency, leave and sentence-related questions without affording the appellant an opportunity to argue his application or considering his reasons for the delay. The Court of Appeal found this a misdirection, set the ruling aside and remitted the matter for proper hearing.

Legal principles established

In an application to extend time under section 349 of the Criminal Procedure Code, the court must apply the statutory criteria and the reasons for the delay, not the merits of the yet-to-be-filed appeal.
A party must be afforded an opportunity to be heard on an extension-of-time application before it is determined.

Court orders

1.Appeal allowed and the orders of Farah Amin J dated 28th May 2021 set aside
2.Matter remitted to the High Court at Kakamega for consideration of the application for extension of time dated 28th May 2021
3.The application for extension of time to be placed for mention before the High Court in Kakamega within fourteen (14) days for directions with respect to its hearing

Authorities

Legislation

Criminal Procedure Codesection 349
Sexual Offences Actsection 8(1) as read with section 8(3)
Sexual Offences Actsection 11(1)

On appeal from: High Court of Kenya at Kakamega; Kakamega Miscellaneous Criminal Application No. E067 of 2021
Jurisdiction invoked: Section 349 of the Criminal Procedure Code; appellate jurisdiction over a ruling of the High Court in a criminal application

Key timeline

Practical implications

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Cite this brief

Caselaw, "Simon Moyi Makari v Republic", Case Analysis (2022). Criminal Appeal E056 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/922/eng@2022-06-24

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