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Court of AppealDismissedCriminal Application E013 of 2021· [2022] KECA 1226 (KLR)

Faja v Republic

Court of Appeal

4 November 2022

SKS. Ole Kantai

776 words in judgment

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The bottom line

Kenya's Court of Appeal refused to extend time for a criminal appeal because the 13-month delay was unexplained and the appeal had no realistic chance of success.

What this practically means

Executive summary

This is a single-judge ruling of the Court of Appeal at Nairobi by Kantai, JA, on an application for leave to appeal out of time under section 349 of the Criminal Procedure Code and Rule 4 of the Court of Appeal Rules. The applicant, Mamush Hirbo Faja, had been tried, convicted and sentenced to death by the High Court; his appeal to the Court of Appeal was dismissed in its entirety on October 25, 2019. He then applied to the High Court (Lesiit, J.) for a re-hearing on sentence, and by a ruling dated March 10, 2020 the judge declined the orders sought. The present motion, dated June 25, 2021, sought leave to appeal out of time against that ruling, the applicant attributing the delay to the late supply of proceedings and judgment. The court applied the well-established Fakir Mohamed v Joseph Mugambi factors: length of and reason for delay, chances of the appeal succeeding, and prejudice to the respondent. It found the delay of more than 13 months inordinate and unexplained, aggravated by the fact that the same lawyer who lodged the application had represented the applicant in the High Court. Tracing the litigation history - conviction and death sentence affirmed on appeal, and the re-sentencing application found to lack merit - the judge concluded the intended appeal had no chance of success. The application was dismissed with no order as to costs. The respondent filed no submissions; the applicant's written submissions were considered.

Key legal issues

Whether the applicant satisfied the Rule 4 criteria for extension of time

Holding

The application failed: the delay of over 13 months was inordinate and unexplained, and the intended appeal had no chance of success given the prior dismissal of the conviction and sentence appeal and the High Court's rejection of re-sentencing.

Reasoning

The court traced the history: conviction and death sentence, dismissal of the appeal in its entirety, and rejection of the re-sentencing application by the High Court. The applicant, represented by the same lawyer, gave no reason for the 13-month delay. That history persuaded the court the intended appeal could not succeed.

p. 2

Legal principles established

In extension-of-time applications under Rule 4, the court considers relevant factors including period of delay, reason for delay, chances of the appeal succeeding, and prejudice to the respondent.

Court orders

1.The application for leave to appeal out of time is dismissed
2.No order as to costs

Authorities

Legislation

Criminal Procedure Codesection 349
Court of Appeal RulesRule 4

Cases cited (5)

Fakir Mohamed v Joseph Mugambi & 2 others
Civil Application No 332 of 2004
Principles governing extension of time under Rule 4
Mutiso v Mwangi
Civil Application No NAI 255 of 1997 (ur)
Extension of time factors
Mwangi v Kenya Airways Limited
[2003] KLR 496
Extension of time factors
Major Joseph Mwereri Igweta v Murika Methare & Attorney General
Civil Application No NAI 8 of 2000 (ur)
Extension of time factors
Murai v Wainaina (No 4)
1982 KLR 38
Extension of time factors

On appeal from: High Court of Kenya at Nairobi; HC. CR. Application No. 2 of 2020
Jurisdiction invoked: Section 349 of the Criminal Procedure Code and Rule 4 of the Court of Appeal Rules

Key timeline

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Cite this brief

Caselaw, "Faja v Republic", Case Analysis (2022). Criminal Application E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1226/eng@2022-11-04

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