[2013] KEHC 501 (KLR)
The court found that, in the interest of justice, the applicant should not be penalized for his advocate's mistake in filing for revision instead of an appeal. The court exercised its discretion to allow the application for leave to file the intended appeal out of time, noting that the applicant had not served the...
Source-derived case information.
- Citation
- [2013] KEHC 501 (KLR)
- Parties
- Applicant: Ali Hassan Abdi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 60 of 2013
- Procedural Posture
- Criminal Appeal / Ruling on Application for Bail Pending Appeal and Leave to File Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Bail Pending Appeal, Leave to Appeal Out of Time, Procedural Delay, Advocate Mistake
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Hassan Abdi
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Bail Pending Appeal and Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time due to advocate's mistake.
- 2 Whether bail pending appeal should be granted despite the delay and the sentence already being spent.
Ratio Decidendi
The court found that, in the interest of justice, the applicant should not be penalized for his advocate's mistake in filing for revision instead of an appeal. The court exercised its discretion to allow the application for leave to file the intended appeal out of time, noting that the applicant had not served the sentence and that the appeal raised legal issues warranting consideration. The court ordered that the intended appeal be filed and served within 14 days to facilitate a hearing date, thereby granting the relief sought by the applicant.
Court Disposition
application allowed
Orders
- The intended appeal shall be filed and served on the State within 14 days after this ruling has been delivered to pave way for a hearing date.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL APPEAL NO. 60 OF 2013
ALI HASSAN ABDI…………………………………APPLICANT
VERSUS
REPUBLIC………………………………………RESPONDENT
RULING
Ali Hassan Abdi, the applicant, seeks bail pending appeal and leave to file an appeal out of time. He brings this application under Sections 349 and 356 of the Criminal Procedure Code and Article 49 of the Constitution as well as costs. He bases this application on the grounds that his advocate filed for revision in Criminal Revision No. 4 of 2011 instead of an appeal and that this delayed the filing of the appeal. He deposes that this is a mistake committed by his advocate and should not be visited on him; that his appeal has high chances of success and that no prejudice will be occasioned to the Respondent. The applicant has attached a copy of the Ruling on Revision where the Judge ruled that the applicant ought to have filed an appeal instead of the revision. He has also attached the Petition of the intended appeal.
The application was opposed by the State through learned State Counsel. Counsel submitted that Section 349 Criminal Procedure Code is specific to the delay caused by failure to obtain proceedings in time; that the applicant has not demonstrated that he applied for proceedings and that these were delayed; that failure to file the appeal in time was occasioned by the applicant himself; that the orders for bail pending appeal have been spent because the application has been brought two years after sentence of three months. Counsel submitted that the applicant has not advanced sufficient grounds to warrant the granting of the orders he is seeking. He asked the court to dismiss the application.
In reply counsel for the applicant submitted that the applicant has been on bail throughout and has not served the sentence; that the appeal raises legal issues that needs to be addressed on appeal and that the discretion of the court is unfettered.
I have considered the application and rival submissions. In the interest of justice I will and do hereby allow the application. The intended appeal shall be filed and served on the State within 14 days after this ruling has been delivered to pave way for a hearing date. I make orders accordingly.
S.N MUTUKU
JUDGE
Signed, dated and delivered this 17th December 2013.