Republic v Evans Mairura Omwenga

5. The Respondent, being dissatisfied with the decision of Hon. D. Mikoyan (CM) he appealed against both conviction and sentence in Eldoret High Court Criminal Appeal No. 108 of 2023 prompting the Appellant to file the instant cross appeal only on sentence. The Appellant’s Petition of Appeal is dated 6th June 2024 and is premised on grounds that: 1. The Honourable trial Magistrate erred in law and fact by correctly convicting the Respondent on Count I but erred by imposing a fine of Ks. 30,000/- which is contrary to provisions of Section 350(1) of the Penal Code. 2. The Appellant prays for enhancement of the sentence to life imprisonment as no fine is provided under Section 350(1) of the Penal Code. Submissions 6. The Appeal was canvassed vide written submissions. The Appellant also filed submissions dated 27th June 2025 while the Respondent filed submissions dated 10th July 2025. Appellant’s Submissions 7. Prosecution Counsel gave a brief of summary of the case, the charge and the particulars thereof. In regard to the sentence meted by the trial Court, Counsel cited Section 350(1) and (2) of the Penal Code and submitted that once the accused was convicted for the forgery under this Section, the sentence he ought to have been given is that of life imprisonment. 8. Counsel further submitted that this section does not provide for imposition of a fine for one convicted. Counsel argued that the fine of Ks .30,000/- imposed upon the Respondent by the trial Court is illegal, null and void. 9. Counsel thus urged the Court to make a finding that the fine imposed by the trial Court does not have a basis in law and the same be set aside and in lieu thereof a proper sentence of life imprisonment be imposed against the accused/ Respondent. Counsel further urged that this cross-appeal be allowed and the appeal in No. E 108 of 2023 be dismissed. Respondent’s Submissions 10. Counsel for the Respondent also gave a brief summary of the parties’ case in his opening submissions and raised five issues for determination. The first issue was that the appeal is fatal for non-compliance. He submitted that Section 350(1) CPC requires criminal appeals from subordinate Courts to be filed as a petition in writing, accompanied by the judgment or order appealed. Counsel argued that this section does not provide for criminal appeals to be instituted by way of a Notice of Appeal. Counsel maintained that the Notice of Appeal filed is incurable and does not satisfy this mandatory requirement. He cited the case of Mangiti & 21 others v Republic [2025] KECA 735 in this regard 11. Counsel further submitted that even as Section 349 of the Criminal Procedure Code gives discretionary powers to the Court to enlarge time in favor of an applicant to file his or her appeal out of time, he urged that by the spirit of this provision, delay of even a single day has to be accounted for by the applicant to enable the Court exercise discretion judiciously. 12. He maintained that the exercise of discretion is governed by the overriding objective of finality in litigation and by the general principles underlying the appeal regime and pointed out that in its exercise of discretion to extend time, or grant permission to file a petition of appeal out of time, it's the Court's https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3228/eng@2026-03-12 2

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duty to take into consideration the special facts and circumstances of the case with an objective to achieve a just and fair outcome. 13. Counsel added that scrutiny should be on the length of delay, the reasons for the delay, the applicant's chances of success on appeal, and whether such an extension of time is likely to prejudice or occasion an injustice to the Respondent. 14. On the issue of the appeal being time barred, Counsel asserted that Section 349 CPC prescribes a (14) day deadline for filing appeals, with discretion can only be extended for “good cause”. That filing after the prescribed period without any leave or extension by the court corrupts the Court's jurisdiction to hear the appeal. He relied on the case of Kipngetich v Republic [2023] KEHC 22887 in support of this submission. 15. With respect to the failure to apply to court for extension of time to file the appeal out of time, Counsel submitted that the State made no application under Section 349 of the CPC as he ought to have done, nor presented any grounds for the delay. Counsel pointed out that under the guiding principles set out in Salat v IEBC [2014], the burden lies on the Applicant (State) to show the length of delay, the reason for delay, the chances of success on appeal, the prejudice that may be occasioned to the Respondent as well as the promptness of application. 16. Counsel maintained that in the in the absence of such an application in compliance with this requirement, no jurisdiction exists to entertain the appeal. Counsel submitted that the State's omission to seek leave is fatal and that no case is made for discretion. 17. In regard to the Respondent being prejudiced by the instant appeal, Counsel urged that a timeous appeal is a cornerstone of a fair criminal process. Counsel argued that it preserves the Respondent's right to prepare, secure legal representation, and assemble evidence. Counsel urged that the delay here prejudices Evans Mairura the Respondent. 18. He submitted that Court of Appeal in Republic v Nzioka [2025] KECA 288 stressed that people seeking an extension must present cogent justification, and that equity demands fairness to the Respondent. Counsel urged that proceeding with a late, informally filed appeal would prejudice the Respondent and contravene the interests of justice. 19. On whether appeal is merited, Counsel submitted that state preferred to appeal and they filed a Notice of Appeal dated the 1st December 2023 and filed on 4th December 2023. That the Appellant later filed the Petition of Appeal on 10th June 2024 and with no Record of Appeal. Counsel cited Section 350 and 349 of the Criminal Procedure Code herein already captured and urged that in this case the Appellant did not seek leave to file an appeal out of time after the mandated time frame had lapsed. 20. Counsel maintained that filing an appeal out of time is not a right but a discretionary remedy where the Court decides on a case to case basis on whether to grant it. Counsel submitted that in the pertaining circumstances, there was no appeal filed. 21. On the issue of the fine imposed, Counsel submitted that Appellant in its Petition of Appeal at ground 1, states that the “Honourable trial magistrate erred in law by imposing a fine of Ks. 30,000/- which is contrary to provisions of Section 350(1) of the Penal Code whereas this section does not provide for imposition of a fine for one convicted. He submitted that Section 350 of the Penal Code Cap 63 which prescribes the offence with which the Respondent was charged states that if one is found guilty of the offence, they are “liable to life imprisonment.” 22. Regarding the discretion of the Court on sentencing, Counsel relied on the following authorities; Daniel Kyalo Muema vs Republic [2009] eKLR, Karingo v. Republic [1982] KLR 213. In https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3228/eng@2026-03-12 3

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M'Riungu v. Republic [1983] KLR 455, Bernard Kimani Gacheru v Republic [2002] eKLR, Francis Karioko Muruatetu & another vs Republic[1017] eKLR and the case of Peter Mbugua Kabui vs Republic[2016] eKLR. Counsel urged that from the aforementioned cases, the trial Court therefore had the discretion to impose a fine to the Respondent and was right to do so after considering the nature of the charge. Determination 23. Having considered the Application as well as the submissions, it sufices for the court to state at this stage that this matter is inter related with ELDORET HCCRA No. E018 of 2023. Therein, the Respondent herein is the Appellant and has appealed against both conviction and sentence. The State who is the Appellant herein is the Respondent. The Appeal by the State herein is over the sentence imposed which the Respondent herein has appealed against. Both matters were heard simultaneously though each as a separate and distinct cause. 24. The determinant cause in both cases is HCCRA E018 of 2023. This is because the court’s finding on the appeal against sentence will most definitely affect the instant appeal which is against sentence only. The court in HCCRA E018 of 2023 has made a determination that the proceedings before the trial court in the matter that is subject of these twin appeals amounted to a mistrial. The court therefore set aside` 25. This therefore means that the sentence that was imposed by the trial court which is the subject of this appeal having been set aside, this appeal is rendered moot and otiose for reasons that there is no scaffolding upon which it is anchored. It is accordingly dismissed. 26. Right of Appeal 14 days READ DATED AND SIGNED AT ELDORET ON 12TH MARCH 2026 E. OMINDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3228/eng@2026-03-12 4

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