The Applicant moved this court vide the Application dated 25th October, 2024, under a certificate of urgency. The Applicant seeks inter alia: That an order of stay be issued against the Ruling delivered on 17th January, 2024 pending hearing and determination of the appeal and that the Applicant be granted leave to file an appeal out of time.
The Application was supported by the affidavit sworn by the Principal Prosecution counsel Mr. Alex Gituma. The main grounds are :
That the applicant has intends to file an appeal against the said ruling.
THAT during trial the applicant was able to link the monies the respondent had fraudulently obtained from the complainant to be monies thot were used in the purchase of the motor vehicle and the some was properly captured in the analysis of the judament.
THAT one of the issues intended to be raised in the appeal is the application of section I 78(1 ) of the criminal Procedure code which allows for forfeiture upon determination of criminal trial for offence under port XXVI-XXXI of the Penal Code of which the respondent was charged with.
THAT the delay by the applicant is not on account of latches as the applicant had previously applied to be served with the proceedings but the proceedings had o lot of typographical errors and missing pages and did not properly capture the evidence of the investigating officer which is key in the determination of the intended appeal
The Respondent opposed the Application vide the Replying Affidavit sworn on 9th December 2024 and filed on 10th December 2024.
The main issue for determination by the court is whether the application is merited and to be allowed as prayed.
In the case of Salat -vs- Independent Electoral & Boundaries Commission & Others{2024} KLR the supreme court set out the principals to be considered by a court when exercising its discretion to extend time when filing an appeal being as follows;
(1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court.
(2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction The Respondent wishes to submit as follows;
(3) Whether the Court ought to exercise the discretion to extend time is a consideration to be made on a case to case basis.
(4) Whether there is a reasonable reason for the delay which ought to be explained to the satisfaction of the Court.
(5) Whether there would be any prejudice suffered by the resporespondents if the extension was granted
. (6) Whether the application had been brought without undue delay and finally whether in certain cases like election petitions public interest ought to be a consideration for extending time.
Section 349 of the Criminal Procedure Code provides for the limitation of time in filing an appeal being fourteen days.
The Applicant seeks an appeal against the ruling on delivered on 17th January 2024 wherein the court ordered the release of motor vehicle KCG 479 N make Ford to the Respondent. The ruling was based on the Application filed by the Maritime Police.
Being dissatisfied with the ruling delivered on 17th January, 2024 the Applicant filed the instant application on 25th October, 2024.
The Applicant ought to have filed an appeal within fourteen days after the ruling delivered on 17th January 2024. However the Applicant filed the instant application seeking to extend time to appeal after a period of nine months and eight days from the date of the ruling.
The court is guided by the principles in determining such an application for extension of time as illustrated in Salat Case (supra).
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The Respondent submitted that they continue to suffer at the seat of justice for a period of nine months and eight days and will continue to suffer as the motor vehicle has not been released.
That the motor vehicle continues to deteriorate and is exposed to wear and tear every day is stationary. Further they have been extremely prejudiced from having access and use of his motor vehicle and further to add salt to the injury the Applicant seeks orders against the ruling delivered on 17th January 2024.
I note that the respondent was convicted and the applicant states that during trial they were able to link the monies the respondent had fraudulently obtained from the complainant to be monies that were used in the purchase of the motor vehicle and the same was properly captured in the analysis of the judgment.
They have also explained the delay in lodging the appeal.
Accordingly I find that the application has merit and it is allowed.
The applicant is granted leave to lodge their appeal out of time. The said appeal to be filled next 21 days from today .
The Ruling and the subsequent order arising from the said ruling delivered by Hon. Alex lthuku CM on 17 th day of January 2024 in Mombasa Chief Magistrate's Miscellaneous Criminal Application Number 367 OF 2023 Maritime Police vs Yusuf Mulumbo Kiyembo, releasing motor vehicle registration number KCG 479 N to the respondent , is hereby stayed pending hearing and determination of his appeal.
The motor vehicle to be secured and the appeal expedited.
It is so ordered .
Dated and delivered this 25 th day of June 2025.
Lady Justice Wendy Kagendo
PRESENT
MR SIRIMA FOR THE APPLICANT
BEBORA COURT ASSISTANT
The Application was supported by the affidavit sworn by the Principal Prosecution counsel Mr. Alex Gituma. The main grounds are :
That the applicant has intends to file an appeal against the said ruling.
THAT during trial the applicant was able to link the monies the respondent had fraudulently obtained from the complainant to be monies thot were used in the purchase of the motor vehicle and the some was properly captured in the analysis of the judament.
THAT one of the issues intended to be raised in the appeal is the application of section I 78(1 ) of the criminal Procedure code which allows for forfeiture upon determination of criminal trial for offence under port XXVI-XXXI of the Penal Code of which the respondent was charged with.
THAT the delay by the applicant is not on account of latches as the applicant had previously applied to be served with the proceedings but the proceedings had o lot of typographical errors and missing pages and did not properly capture the evidence of the investigating officer which is key in the determination of the intended appeal
The Respondent opposed the Application vide the Replying Affidavit sworn on 9th December 2024 and filed on 10th December 2024.
The main issue for determination by the court is whether the application is merited and to be allowed as prayed.
In the case of Salat -vs- Independent Electoral & Boundaries Commission & Others{2024} KLR the supreme court set out the principals to be considered by a court when exercising its discretion to extend time when filing an appeal being as follows;
(1) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court.
(2) A party who seeks for extension of time has the burden of laying a basis to the satisfaction The Respondent wishes to submit as follows;
(3) Whether the Court ought to exercise the discretion to extend time is a consideration to be made on a case to case basis.
(4) Whether there is a reasonable reason for the delay which ought to be explained to the satisfaction of the Court.
(5) Whether there would be any prejudice suffered by the resporespondents if the extension was granted
. (6) Whether the application had been brought without undue delay and finally whether in certain cases like election petitions public interest ought to be a consideration for extending time.
Section 349 of the Criminal Procedure Code provides for the limitation of time in filing an appeal being fourteen days.
The Applicant seeks an appeal against the ruling on delivered on 17th January 2024 wherein the court ordered the release of motor vehicle KCG 479 N make Ford to the Respondent. The ruling was based on the Application filed by the Maritime Police.
Being dissatisfied with the ruling delivered on 17th January, 2024 the Applicant filed the instant application on 25th October, 2024.
The Applicant ought to have filed an appeal within fourteen days after the ruling delivered on 17th January 2024. However the Applicant filed the instant application seeking to extend time to appeal after a period of nine months and eight days from the date of the ruling.
The court is guided by the principles in determining such an application for extension of time as illustrated in Salat Case (supra).
.
The Respondent submitted that they continue to suffer at the seat of justice for a period of nine months and eight days and will continue to suffer as the motor vehicle has not been released.
That the motor vehicle continues to deteriorate and is exposed to wear and tear every day is stationary. Further they have been extremely prejudiced from having access and use of his motor vehicle and further to add salt to the injury the Applicant seeks orders against the ruling delivered on 17th January 2024.
I note that the respondent was convicted and the applicant states that during trial they were able to link the monies the respondent had fraudulently obtained from the complainant to be monies that were used in the purchase of the motor vehicle and the same was properly captured in the analysis of the judgment.
They have also explained the delay in lodging the appeal.
Accordingly I find that the application has merit and it is allowed.
The applicant is granted leave to lodge their appeal out of time. The said appeal to be filled next 21 days from today .
The Ruling and the subsequent order arising from the said ruling delivered by Hon. Alex lthuku CM on 17 th day of January 2024 in Mombasa Chief Magistrate's Miscellaneous Criminal Application Number 367 OF 2023 Maritime Police vs Yusuf Mulumbo Kiyembo, releasing motor vehicle registration number KCG 479 N to the respondent , is hereby stayed pending hearing and determination of his appeal.
The motor vehicle to be secured and the appeal expedited.
It is so ordered .
Dated and delivered this 25 th day of June 2025.
Lady Justice Wendy Kagendo
PRESENT
MR SIRIMA FOR THE APPLICANT
BEBORA COURT ASSISTANT