1.This appeal is before me for admission to hearing under section 352 of the Criminal Procedure Code. It is hereby summarily rejected as it was filed out of time without first seeking and obtaining leave of court to enlarge time for filing the appeal as stipulated in section 349 of the Criminal Procedure Code which provides as follows:
2.The reasons for my summary rejection of the appeal herein are set out below.
3.The appellant was convicted and sentenced for the offence of maim and attempted rape on December 13, 2018 nearly four years ago. He was sentenced to serve concurrent prison terms of 6 years and 5 years respectively by Hon GA Adhiambo Senior Resident Magistrate, Ukwala. Assuming his sentences were subject to remission owing to the appellant’s good behaviour in prison, he may have left prison by now. The appellant filed this appeal on February 12, 2019 which was 60 days after sentence was imposed. The period for filing of an appeal from the Magistrate’s court to the High Court is 14 days and with leave of court, the period can be extended.
4.In this case which has been pending in this court from 2018 for lack of the trial court record, the appeal as filed is not accompanied by an order granting leave to appeal out of time. This has only been discovered after arrival of the lower court file on July 1, 2022 after several requests since 2019.
5.The jurisdiction of this court to hear and determine the appeal is determined by the appeal being filed within the statutory period or within the enlarged period of time with leave of court.
6.The Supreme Court of Kenya in SC Appl No 38 of 2014 between TSC vs Simon Kamau and 19 Others, adopted its earlier decision in Nicholas Kiptoo Arap Korir Salat vs the IEBC & 7 Others SC Appl No 16 of 2014 and stated:
7.Although the above decision related to civil litigation, the principles applicable in criminal cases as far as criminal appeals from the subordinate court to the High Court are concerned, a party who is convicted and sentenced to serve prison sentence and who proceeds to serve that prison sentence must if he/she so wishes to challenge the decision of the court, file, at the earliest opportunity, an appeal or if for good reason they delayed in filing of the appeal, then they must first seek for leave extending the 14 days period. This is not the case here.
8.This court has no jurisdiction to hear and determine the merits of an appeal filed out of time without leave of court.
9.For the above reasons, this appeal is hereby struck out for being filed out of time without leave of court to enlarge such time.
10.The appellant and respondents to be notified.
11.File closed. I so order.