1. Through an application dated 11 th July, 2025, the Applicant seeks leave to appeal out of time.
2. The application is premised on grounds that;
1) That the Applicant herein was charged with different counts of offences as follows; Forgery contrary to Section 345 as read with Section 349 of the Penal Code, uttering a false document contrary to Section 353 as read with Section 349 of the Penal Code, Obtaining registration by false pretence contrary to Section 320 of the Penal Code, Giving false information to a person employed in the public serve contrary to Section 129(a) of the Penal Code and Conspiracy to defraud contrary to Section 317 of the Penal Code in Rumuruti Senior Principal Magistrate Criminal Case No. E020 of 2024; Republic v Elizabeth Gachuiri.
2) That the Appellant/Applicant was convicted in all these counts on 27 th December, 2024 and subsequently sentenced to a fine of Kshs.90,000/- on 20 th January, 2025, on Count I – IV and discharged on Count V under Section 35 of the Penal Code.
3) That on 31 st January, 2025, the Appellant moved the same court vide an application for review of the above judgment on the ground that the Appellant/Applicant had discovered new and compelling evidence in the form of a judgment delivered in her favour on 30 th October, 2024 in Nanyuki CMELC No. E031 of 2024; Elizabeth Wangui Gachuiri v Simon Maina Wambugu that the trial court had made difficult to produce during the proceedings.
4) That the court dismissed this application for want of jurisdiction on 2 nd April, 2025.
5) That the 14 days period within which a convicted person is allowed to file an appeal lapsed on 3 rd February, 2025 when the application for review was still pending before the court.
6) That the Appellant/Applicant could not have filed an appeal within the said period since a convicted person cannot appeal and at the same time seek a review.
7) That the fact that there was a pending application for review before the trial court is a good ground to warrant this court to exercise its discretion in extending time to allow the Appellant/Applicant to file her appeal outside the 14 days window.
8) That as a result of the foregoing, the Appellant/ Applicant’s delay in filing an appeal is excusable.
9) That the Appellant/Applicant has a triable appeal as can be deciphered from the draft petition of appeal.
10) That the Respondent will not be prejudiced if this application is allowed.
11) That it will only serve the interests of justice if this application is allowed.
3. The application is unopposed.
4. The Applicant through the firm of Mathea Gikunju & Co. Advocates filed written submissions in disposition of the application.
5. The State through Ms. Mumbe learned counsel did not oppose the application.
6. Section 349 of the Criminal Procedure Code provides thus;
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 therefore.
7. In the instant matter, it has been demonstrated by documentary evidence that upon conviction, the Applicant was sentenced on 20 th January, 2025.
8. The explanation given for not complying with the statutory requirement was the fact of the Applicant having filed an application for review of the decision of the trial court allegedly having discovered new and compelling evidence as provided by Article 50(6) (b) of the Constitution which turned out to be a misdirection following the provisions of Article 50(6) of the Constitution.
9. This court is seized of the discretion to admit an appeal out of the stipulated period of 14 days if a good cause is demonstrated.
10. The Applicant herein made a conscious decision to pursue review at the trial court instead of challenging the decision of the trial court in a higher court as stipulated by the constitution. Article 50(2) (q) of the Constitution provides thus;
If convicted, to appeal to, or apply for review by a higher court as prescribed by law to appeal or apply for review by a high court as prescribed by law.
11. Where an accused person is convicted by a court of law and is aggrieved by the conviction, he has a constitutional right to either appeal or seek review. The Applicant moved to the trial court seeking review with the hope of the decision being reconsidered but this was not the case.
12. Despite the apparent delay occasioned of three (3) months, this court is obligated to balance the question of finality of the matter as against the fairness and the interest of justice.
13. For that reason, I grant the Applicant leave to file the appeal out of time within 14 days of today. In default, the application to stand dismissed.
14. It is so ordered.
HCCR MISC. E020 OF 2025 (RUL.) Page 2 of 2
2. The application is premised on grounds that;
1) That the Applicant herein was charged with different counts of offences as follows; Forgery contrary to Section 345 as read with Section 349 of the Penal Code, uttering a false document contrary to Section 353 as read with Section 349 of the Penal Code, Obtaining registration by false pretence contrary to Section 320 of the Penal Code, Giving false information to a person employed in the public serve contrary to Section 129(a) of the Penal Code and Conspiracy to defraud contrary to Section 317 of the Penal Code in Rumuruti Senior Principal Magistrate Criminal Case No. E020 of 2024; Republic v Elizabeth Gachuiri.
2) That the Appellant/Applicant was convicted in all these counts on 27 th December, 2024 and subsequently sentenced to a fine of Kshs.90,000/- on 20 th January, 2025, on Count I – IV and discharged on Count V under Section 35 of the Penal Code.
3) That on 31 st January, 2025, the Appellant moved the same court vide an application for review of the above judgment on the ground that the Appellant/Applicant had discovered new and compelling evidence in the form of a judgment delivered in her favour on 30 th October, 2024 in Nanyuki CMELC No. E031 of 2024; Elizabeth Wangui Gachuiri v Simon Maina Wambugu that the trial court had made difficult to produce during the proceedings.
4) That the court dismissed this application for want of jurisdiction on 2 nd April, 2025.
5) That the 14 days period within which a convicted person is allowed to file an appeal lapsed on 3 rd February, 2025 when the application for review was still pending before the court.
6) That the Appellant/Applicant could not have filed an appeal within the said period since a convicted person cannot appeal and at the same time seek a review.
7) That the fact that there was a pending application for review before the trial court is a good ground to warrant this court to exercise its discretion in extending time to allow the Appellant/Applicant to file her appeal outside the 14 days window.
8) That as a result of the foregoing, the Appellant/ Applicant’s delay in filing an appeal is excusable.
9) That the Appellant/Applicant has a triable appeal as can be deciphered from the draft petition of appeal.
10) That the Respondent will not be prejudiced if this application is allowed.
11) That it will only serve the interests of justice if this application is allowed.
3. The application is unopposed.
4. The Applicant through the firm of Mathea Gikunju & Co. Advocates filed written submissions in disposition of the application.
5. The State through Ms. Mumbe learned counsel did not oppose the application.
6. Section 349 of the Criminal Procedure Code provides thus;
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 therefore.
7. In the instant matter, it has been demonstrated by documentary evidence that upon conviction, the Applicant was sentenced on 20 th January, 2025.
8. The explanation given for not complying with the statutory requirement was the fact of the Applicant having filed an application for review of the decision of the trial court allegedly having discovered new and compelling evidence as provided by Article 50(6) (b) of the Constitution which turned out to be a misdirection following the provisions of Article 50(6) of the Constitution.
9. This court is seized of the discretion to admit an appeal out of the stipulated period of 14 days if a good cause is demonstrated.
10. The Applicant herein made a conscious decision to pursue review at the trial court instead of challenging the decision of the trial court in a higher court as stipulated by the constitution. Article 50(2) (q) of the Constitution provides thus;
If convicted, to appeal to, or apply for review by a higher court as prescribed by law to appeal or apply for review by a high court as prescribed by law.
11. Where an accused person is convicted by a court of law and is aggrieved by the conviction, he has a constitutional right to either appeal or seek review. The Applicant moved to the trial court seeking review with the hope of the decision being reconsidered but this was not the case.
12. Despite the apparent delay occasioned of three (3) months, this court is obligated to balance the question of finality of the matter as against the fairness and the interest of justice.
13. For that reason, I grant the Applicant leave to file the appeal out of time within 14 days of today. In default, the application to stand dismissed.
14. It is so ordered.
HCCR MISC. E020 OF 2025 (RUL.) Page 2 of 2