[RULING] Appeal-extension of time-where the applicant seeks orders setting aside the judge’s refusal to grant leave to lodge appeal out of time-where the delay in failing to file notice of appeal is 47 days and there is no evidence that the court file went missing from the registry within that period-whether the refusal orders should be set aside in such circumstances

James Kimani v Republic

Court of Appeal, at Mombasa January 19, 2001

Akiwumi, Tunoi & Shah, JJ A

Criminal Appeal No 58 of 2000

(Appeal from a Judgment of the High Court at Mombasa, Hayanga J &

Comm Khaminwa, dated 22nd October 1999 in H C Cr A No 175 o f 1998)

Criminal Practice and Procedure – appeal – second appeal – concurrent findings of fact by the trial and first appellate courts - findings supporting conviction of the accused – circumstances in which the Court of Appeal will interfere with such findings on a second appeal.

Criminal Practice and Procedure – charge – form of charge – giving of details in the particulars of the charge – charge failing to state the time when the offence charged was alleged to have been committed – accused person not raising the issue at the trial court - whether the charge was defective – whether prejudice had been caused to the accused – Criminal Procedure Code (cap 75) sections 137(f), 382

The appellant was arraigned before a magistrate’s court on a charge of robbery with violence. At the close of the hearing, the trial magistrate accepted the prosecution’s evidence over that of the appellant and he was therefore convicted of the charge. On his first appeal, the High Court substantially concurred with the findings of fact made by the trial court and upheld the conviction.

The appellant then brought this second appeal. He substantially reiterated his grounds of appeal in the High Court, adding that the charge against him was defective as the particulars did not give the time when the alleged offence was said to have been committed as required by section 137(f) of the Criminal Procedure Code.

Held:

1. The Court of Appeal will only interfere with the concurrent findings of fact by the trial court and the court which heard the first appeal where the conclusions are unsupportable on the evidence. In this case, the findings of fact by the trial court and the concurrent estimation of those facts by the High Court were proper.

2. Though the particulars of the charge did not state the time when the offence was alleged to have been committed, the evidence of prosecution witnesses had given an indication of it. In the circumstances of the trial, this lack of detail, which should have been raised during the trial, did not cause a failure of justice and apart from that, section 382 of the Criminal Procedure Code dealt with such a flaw.

Appeal dismissed.

Cases

No cases referred to

Statutes

Criminal Procedure Code (cap 75) sections 137 (f), 382