- Daniel Mwania Kithuku, the applicant, was indicted, tried, convicted by the lower court in Sexual Offence Case NO.10 of 2009 by the Chief Magistrate’s court, Nyahururu.
- Through an un-dated application filed herein on 15th March, 2020, the applicant seeks leave to appeal out of time.
- Section 349 of the Criminal Procedure Code provides that:
An appeal shall be entered within fourteen days of the date of the order or sentence appealed against: Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor.
- In the supporting affidavit, the applicant deposed that he filed an appeal but did not receive any response. That he hired a lawyer to appeal but two weeks later he told him that he did not file the appeal. However, in his oral submissions he stated that having been indicted for defiling a nine (9) year old victim he was sentenced to serve life imprisonment. That he appealed in 2010, a case that was determined and the appeal dismissed.
- The respondent through learned prosecution counsel Ms. Kariuki, urged that the applicant had already filed two (2) appeals that were dismissed.
- A court to which such an application is made may grant the applicant leave to appeal out of time if good cause is demonstrated. This is an applicant who is not candid as he has given contradictory information. Besides, time taken before filing the instant application, a period of ten (10) years, is inordinate.
- In the result, no good cause has been shown to warrant granting of the order sought, the application fails and is struck out.
- It is so ordered.