[1984] KECA 101 (KLR)
The court found that the applicant, through his wife, took all necessary steps to prosecute his appeal by instructing an advocate in a timely manner. The failure to file the notice of appeal was due to the omission of the former advocate, not any fault of the applicant. The delay was not inordinate, and the matter...
Source-derived case information.
- Citation
- [1984] KECA 101 (KLR)
- Parties
- Applicant: Answer Kipngetich; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 17 of 1984
- Procedural Posture
- Criminal Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Notice of Appeal, Advocate Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Answer Kipngetich
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file a notice of appeal after delay caused by his former advocate.
- 2 Whether the delay in filing the notice of appeal was inordinate or excusable.
Ratio Decidendi
The court found that the applicant, through his wife, took all necessary steps to prosecute his appeal by instructing an advocate in a timely manner. The failure to file the notice of appeal was due to the omission of the former advocate, not any fault of the applicant. The delay was not inordinate, and the matter concerned the liberty of the applicant. Therefore, the court exercised its discretion to allow the application for extension of time, enabling the applicant to file the notice of appeal within fourteen days.
Court Disposition
application allowed
Orders
- The applicant shall file the Notice of Appeal within fourteen (14) days from the date of this order.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI
(Coram: Chesoni AG J A (In Chambers)
Criminal Application No NA17 OF 1984
(In the matter of an intended appeal)
Between
Answer Kipngetich ……………………………………………… Applicant
And
Republic …………………………………………………………..Respondent
(Application for extension of time to file notice of Appeal in an intended appeal from a conviction of the High Court of Kenya at Nairobi (O’Kubasu J) dated 3rd August 1984 in Civil Appeal No 369 of 1984
RULING OF CHESONIO AG J A
The applicant’s appeal was dismissed by the High Court (O’Kubasu J) on 3rd August 1984. His wife consulted him in September, when he requested her to instruct a lawyer to prefer a second appeal to this court. In her affidavit in support this application for extension of time to file the Notice of Appeal, Susan Wangari Kipng’etich (his wife says that she instructed Mr Kositany advocate, in September 1984. However, she later discovered that Mr Kositany had taken no action to file and prosecute the appeal and on 9th November, 1984 she instructed Odero and Orieyo, Advocates, who filed this application on 9th November, 1984.
Mr Odero has submitted that the applicant should not be made to suffer for the omission of his former advocate. Miss Mbarire for the Respondent chose to leave the matter to my discretion.
I am satisfied that the applicant took necessary steps to prosecute his appeal but he was let down by his former advocate. The delay is not inordinate and the matter involves the liberty of a subject. I would in the circumstances exercise my discretion in the favour of the applicant. Consequently, the application is allowed and the applicant shall file the Notice of Appeal within 14 (fourteen) days from the date of this order. So I order.
Delivered at Nairobi this 10th of December 1984.
Z R Chesoni
Ag Judge of Appeal
I Certify that this is a true copy of the original.
Deputy Registrar