1. The Applicant Julius Omondi Odhiambo was charged, convicted and sentenced on 7/9/2023 to serve a life imprisonment for the offence of incest contrary to Section 20 (1) of the Sexual Offences Act No. 3 of 2006 and an indecent Act Contrary to Section 11 (1) of the same Act in Maseno Senior Principal Magistrate Criminal Case No. 41 of 2020.
2. The Applicant has now moved this court pursuant to the provisions of Articles 25, 27, 50 52 and 165 of the Constitution of Kenya 2010 craving leave for enlargement of his timeline for lodging an appeal.
3. This application is premised on the ground that the Applicant was at all material times ignorant of the law, got in adequate guidance upon conviction and that he had been dependent upon family and friends who failed to assist him.
4. It is trite practice that once a person is convicted and sentence, the trial court of appeal which of their right of appeal which in the case of the Applicant was exercisable within 14 days from the date hereof. In any event ignorance of the law is no defence and cannot be a good reason to justify the delay of more than 1 year.
5. Whereas the Applicant has also contributed his delay to inadequate guidelines upon conviction, I do reiterate the earlier observation made hereinabove that every convict is a matter of course advised on his right to appeal. I do note that the proceedings of the trial court wherefore this court has been denied the opportunity of perusing the same for purposes of ascertaining whether the Applicant had been advised on his right to appeal or not.
6. The other reason cited by the Applicant for his failure to lodge an appeal in time is that he had been dependent upon his friends and family to do so. Surprisingly no disclosure of the identity of the friends and family who were supposed to assist him and no affidavits have been filed by the undisclosed friends and family in this regard. I am therefore not persuaded by this reason.
7. It is instructive to note that the Applicant has not taken the trouble to annex a draft of memorandum of appeal wherefore he has failed to demonstrate that he is indeed seriously desirous of lodging an appeal. Moreover that omission has denied this court the opportunity of ascertaining the agreeability of the intended appeal.
8. As earlier on stated hereinabove, the limitation period for lodging the Criminal Appeal set at 14 days as per the provisions of Section 349 of the Criminal Procedure Code which states that:
``An appeal hall 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.
9. Pursuant to the provisions of Article 163 (7) of the Constitution of Kenya 2010 and the doctrine of stare decisis this court is bound by the Supreme Court of Kenya decision in the case of Nicholas Kiptoo Arap Korir Salar –vs- Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR WHERE THE Supreme Court rendered itself on the principles that guide the courts when dealing with applications for enlargement of time thus:
``Extension of time being a creature of equity, one can only enjoy it if he acts equitability, he who seeks equity must do equity. Hence one has to lay a basis that he was not at fault so as to let time to lapse. Extension off time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay basis where they seek courts to grant it’’.
The court further stated that any reasonable delay ought to be explained to the satisfaction of the court, the reasons therefore and the light thereof must be explained.
The court must also consider the prejudice likely to be suffered by the Respondent in the event of enlargement.
Public interest for instance in cases that have strict timelines such as election petitions must be considered.
10. Upon analyzing the said principles as set in the above case viz avis the circumstances of this case, I do find that the Applicant has not met the threshold for enlargement of time wherefore I find that he is undeserving the orders sought.
On the balance I do find that this application is devoid of merit and the same is hereby disallowed.
This file is marked as closed.
Dated at Kisumu this 27th day of December 2024
2. The Applicant has now moved this court pursuant to the provisions of Articles 25, 27, 50 52 and 165 of the Constitution of Kenya 2010 craving leave for enlargement of his timeline for lodging an appeal.
3. This application is premised on the ground that the Applicant was at all material times ignorant of the law, got in adequate guidance upon conviction and that he had been dependent upon family and friends who failed to assist him.
4. It is trite practice that once a person is convicted and sentence, the trial court of appeal which of their right of appeal which in the case of the Applicant was exercisable within 14 days from the date hereof. In any event ignorance of the law is no defence and cannot be a good reason to justify the delay of more than 1 year.
5. Whereas the Applicant has also contributed his delay to inadequate guidelines upon conviction, I do reiterate the earlier observation made hereinabove that every convict is a matter of course advised on his right to appeal. I do note that the proceedings of the trial court wherefore this court has been denied the opportunity of perusing the same for purposes of ascertaining whether the Applicant had been advised on his right to appeal or not.
6. The other reason cited by the Applicant for his failure to lodge an appeal in time is that he had been dependent upon his friends and family to do so. Surprisingly no disclosure of the identity of the friends and family who were supposed to assist him and no affidavits have been filed by the undisclosed friends and family in this regard. I am therefore not persuaded by this reason.
7. It is instructive to note that the Applicant has not taken the trouble to annex a draft of memorandum of appeal wherefore he has failed to demonstrate that he is indeed seriously desirous of lodging an appeal. Moreover that omission has denied this court the opportunity of ascertaining the agreeability of the intended appeal.
8. As earlier on stated hereinabove, the limitation period for lodging the Criminal Appeal set at 14 days as per the provisions of Section 349 of the Criminal Procedure Code which states that:
``An appeal hall 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.
9. Pursuant to the provisions of Article 163 (7) of the Constitution of Kenya 2010 and the doctrine of stare decisis this court is bound by the Supreme Court of Kenya decision in the case of Nicholas Kiptoo Arap Korir Salar –vs- Independent Electoral and Boundaries Commission & 7 Others (2014) eKLR WHERE THE Supreme Court rendered itself on the principles that guide the courts when dealing with applications for enlargement of time thus:
``Extension of time being a creature of equity, one can only enjoy it if he acts equitability, he who seeks equity must do equity. Hence one has to lay a basis that he was not at fault so as to let time to lapse. Extension off time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay basis where they seek courts to grant it’’.
The court further stated that any reasonable delay ought to be explained to the satisfaction of the court, the reasons therefore and the light thereof must be explained.
The court must also consider the prejudice likely to be suffered by the Respondent in the event of enlargement.
Public interest for instance in cases that have strict timelines such as election petitions must be considered.
10. Upon analyzing the said principles as set in the above case viz avis the circumstances of this case, I do find that the Applicant has not met the threshold for enlargement of time wherefore I find that he is undeserving the orders sought.
On the balance I do find that this application is devoid of merit and the same is hereby disallowed.
This file is marked as closed.
Dated at Kisumu this 27th day of December 2024