Heguda v Republic (Criminal Appeal E111 of 2023) [2024] KECA 735 (KLR) (21 June 2024) (Judgment)
Neutral citation:
[2024] KECA 735 (KLR)
Republic of Kenya
Criminal Appeal E111 of 2023
AK Murgor, KI Laibuta & GV Odunga, JJA
June 21, 2024
Between
Hiribae Kokane Heguda
Appellant
and
Republic
Respondent
(Being an appeal against the ruling and orders of the High Court at Garsen (S. M. Githinji, J.) made on 16th November 2023 in HC. Miscellaneous Application No. E025 of 2023)
Judgment
1.From the scanty material placed before us in this appeal, it is not possible to discern the history of this appeal. However, for the purpose of determining it, we need not delve deeply into the history of the case.
2.What is clear is that the appellant, Hiribae Kokane Hekuda, filed Miscellaneous Criminal Application No. E025 of 2023 in the High Court of Kenya at Garsen vide the Chamber Summons dated 14th September 2023 in which he sought leave to file an appeal out of time pursuant to Section 349 of the Criminal Procedure Code. His application was supported by his affidavit sworn on 4th September 2023 in which he averred that he was not able to file his appeal since the judgment of the Trial court was not supplied to him in time. According to the appellant, his appeal had high chances of success. In that regard, he annexed a draft Memorandum of Appeal.
3.The record does not indicate whether the appellant’s application was opposed.
4.On 1st November 2023, the application came before the High Court and the record put to us states:
5.When the appeal came before us on 11th June 2024 for hearing on the Goto Meeting virtual platform, the appellant appeared in person from Manyani Maximum Prison and relied entirely on his submissions dated 10th June 2024. Learned counsel Ms. Nyawinda appeared for the respondent and made oral submissions on the appeal.
6.The only issue for our determination is whether the appellant was heard before the learned Judge made his decision to dismiss his application. From the record, it is clear that none of the parties was heard. To our mind, the only provision that deals with summary determination in criminal cases is section 352 of the Criminal Procedure Code, which provides that:
7.In our view, the afore-cited section does not apply to applications for leave to appeal out of time. Dealing with the court’s power to summarily reject appeals, this Court (Nyarangi, Gachuhi & Apaloo, JJA.) in Washingstone Walimulu s/o Masa v Republic [1987] eKLR expressed itselfas hereunder:
8.In Wilson Maina Murage v R [2000] eKLR, this Court (Chunga, CJ, Shah & Owuor, JJA), while dealing with the same section, held that:
9.On the authorities aforesaid, we find that the learned Judge erred by acting without jurisdiction when he dismissed the appellant’s application without hearing any of the parties who, as is indicated on the record, were before him.
10.Accordingly, we hereby allow the appeal, set aside the order made on 1st November 2023 dismissing the application dated 14th September 2023 and hereby remit it to the High Court for full hearing. In light of the disclosure by the appellant that he has substantially served his sentence, we direct that the application be set down for hearing by the High Court on a priority basis and as soon as is practically possible before a Judge other than Githinji, J.
11.We so order.
DATED AND DELIVERED AT MALINDI THIS 21ST DAY OF JUNE, 2024A. K. MURGOR..........................JUDGE OF APPEALDR. K. I. LAIBUTA C.Arb, FCIArb...........................JUDGE OF APPEALG. V. ODUNGA..........................JUDGE OF APPEALI certify this to be a true copy of the originalSignedDEPUTY REGISTRAR