Ahmed Mwinyiamani v. R., Crim. App. 26-DSM-72, 25/5/72, Mwakasendo, Ag., J.

 

Ahmed Mwinyiamani v. R., Crim. App. 26-DSM-72, 25/5/72, Mwakasendo,  Ag., J.

The applicant was convicted of conspiracy to commit a felony c/s 384 and two counts or robbery with violence c/s 286, Penal Code. On 17 May 1971 he applied for a copy of judgment, which he received only on 8 November 1971, although his counsel received a copy on 1 November. No appeal was filed until the period of limitation had elapsed as computed from the time the applicant received his copy of judgment. This is an application to appeal out of time by virtue of s. 314, Criminal Procedure Code, which provides in part, that the High Court may “for good cause” admit an appeal when the period of limitation has elapsed.

            Held: (1) “As the applicant only received copy of judgment on 8^th November 1971, it would seem to me that for the purpose of appeal, time began to run as from the date of receipt of the copy of judgment.” (2) “According to the learned Counsel for the applicant the only reason for delay in filing the petition of appeal in this case is that Counsel honestly felt that the only way he could assist the applicant effectively in lodging an appeal against the trial Court’s judgment was by going through the proceedings of the case. As he did not have this at the time, he decided to write to the Resident Magistrate’s Court for a copy. However no copy of proceedings was received from the trial Court until well after the period of limitation had elapsed. I can well understand the reasons for Counsels’ feeling diffident to take up an appeal brief without first assuring themselves that their clients have sufficient grounds of complaint against the decision or order of the trial court. But well grounded as this occasional feeling of doubt may be, it is not, in my opinion, a sufficient cause to warrant this court to order for an extension of time for lodging an appeal. The law is clear enough. The vital document that an advocate must go through before lodging an appeal is the copy of judgment or order and not the copy of proceedings I am sure that if Parliament wished the time requisite for obtaining a copy of proceedings to be excluded from the prescribed periods of limitation, there was nothing to stop it from saying so in clear terms. I am accordingly unable to accept Counsel’s arguments that the delay in obtaining a copy of the proceedings without more is a good cause for not lodging an appeal within the period of limitation. My attention has been drawn to a case of this Court – R. v. Hamood Nassoro (1972)) H.C.D. n. 30. In that case the Republic applied for leave to appeal out of time against the decision of the Magistrate on the ground that although the ruling was delivered on 14^th July, 1971` a copy of same was not supplied until 29^th September, 1971 and up to the hearing of the application a copy of the proceedings had not yet been received. My learned brother, Makame, J., held: “(a). It is meet that the matter should be considered by High Court ….. In Kiomboi Criminal Case No. 42/66 Rep. v. Yusufu Daudi & 3 others my learned brother Biron expressed the view that it is arguable whether the tying of a person’s hands is wrongful confinement;” and (b) the delay by the Republic is understandable. Leave was granted. I must confess that, unlike my learned brother Makame J, I cannot comprehend how the delay by the Republic in the Hamood Nassoro case could be to be understandable in the circumstances justifying the Republic’s delay in lodging an appeal in the case. There was however as I perceive, a good cause for  

granting leave in that case and that is, the Magistrate’s decision or order involved a legal issue of paramount  importance. It was therefore meet and proper in those circumstances for the court to exercise its direction to admit appeal notwithstanding that the prescribed periods of limitation had long elapsed. The present case is clearly to be distinguished from the Hamood Nassoro case in that the instant case unlike the Hamood Nassoro case raises no legal issue of any substance. There is thus in this case no compelling ground to warrant this court’s exercise of its discretion under Section 314 of the Criminal Procedure Code. Accordingly, refusal of leave in this case would not occasion any failure of justice as no doubt might have been the case if the application in the Hamood Nassoro case had been refused.”  (3) Application rejected.