Said v Republic (Criminal Appeal E014 of 2023) [2025] KECA 1568 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a judge cannot dismiss a late-appeal application without hearing both sides, so Morris Said gets a fresh, fair hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge of the High Court acted without jurisdiction in dismissing the Appellant's application for extension of time to file an appeal without hearing any of the parties
- 2.Whether the Appellant's application for extension of time should be remitted to the High Court for determination on its merits
Key legal issues
#Whether the High Court Judge could determine an application for leave to appeal out of time without hearing the parties
No. The only provision dealing with summary determination in criminal cases is section 352 of the Criminal Procedure Code, which does not apply to applications for leave to appeal out of time. Dismissing such an application without hearing any of the parties amounts to acting without jurisdiction.
Relying on its own decision in Heguda vs Republic, the Court held that summary dismissal procedures in section 352 of the Criminal Procedure Code do not govern extension-of-time applications. Since neither the Appellant nor Prosecution Counsel was afforded an opportunity to be heard, the Judge violated natural justice and acted without jurisdiction. The dismissal was therefore a nullity and the application had to be heard afresh on its merits.
The nature of the discretion to extend time for filing an appeal under section 349 of the Criminal Procedure Code
The decision whether or not to extend time is essentially discretionary. An appeal must be entered within fourteen days, but the court may admit an appeal after that period for good cause, and must do so where the failure was caused by the appellant's inability to obtain a copy of the judgment or record within a reasonable time.
The Court reproduced section 349 of the Criminal Procedure Code and applied the Supreme Court's guidance in Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet that there is no minimum or maximum period of delay; what matters is a plausible and satisfactory explanation upon which discretion can be favourably exercised. Because the discretion was never properly exercised below, the matter was remitted for a merits determination.
Legal principles established
#- Section 352 of the Criminal Procedure Code, which provides for summary determination in criminal cases, does not apply to applications for leave to appeal out of time; a Judge cannot dismiss such an application without hearing the parties, as to do so is to act without jurisdiction.
- The decision whether or not to extend time for filing an appeal is discretionary and any delay must be satisfactorily explained; a plausible and satisfactory explanation is the key to the exercise of that discretion.
Court orders
#- 1.The appeal is allowed
- 2.The Appellant's application for extension of time to file an appeal to the High Court from the decision of the Senior Principal Magistrate's Court is remitted to the High Court for determination on its merits and on a priority basis before a Judge of the High Court other than S. Githinji, J
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Garsen
- Misc. Application No. E013 of 2022
- Jurisdiction invoked
- Second appellate jurisdiction under the Criminal Procedure Code over the High Court's dismissal of an application for leave to appeal out of time (section 349 of the Criminal Procedure Code invoked)
Relief refused
#Direct grant of leave to appeal out of time by the Court of Appeal
The Court of Appeal did not itself exercise the discretion under section 349 of the Criminal Procedure Code; instead it remitted the application to the High Court for fresh determination on the merits because the Judge below had acted without jurisdiction by dismissing the application without hearing the parties
Costs
No costs order was made in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
From the foregoing, it is clear that the learned Judge acted without jurisdiction when he dismissed the Appellant's application without hearing any of the parties. As a consequence, the appeal is merited.
….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.
In sum, the appeal be and is hereby allowed. The Appellant's application for extension of time to file an appeal to the High Court from the decision of the Senior Principal Magistrate's Court is remitted to the High Court for determination on its merits and on a priority basis before a Judge of the High Court other than S. Githinji, J.
Issues in the judgment
#The record states the application was fixed for hearing on 4th April 2022, while the Judge's quoted ruling states it was determined on 5.4.2022
The Court of Appeal appeal number is not stated anywhere in the judgment; only the underlying High Court Misc. Application No. E013 of 2022 is identified
The judgment refers to an appeal to the High Court at Garsen while the Appellant states he appealed to the High Court at Garsen from Hindi Prison; the initial appeal is said not to have reached the High Court's registry, which is unexplained on the record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said v Republic (Criminal Appeal E014 of 2023) [2025] KECA 1568 (KLR)", Case Analysis (2025). Criminal Appeal (unnumbered on record; arising from High Court Misc. Application No. E013 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1568/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.