[1985] KECA 12 (KLR)
The Court of Appeal held that section 361(8)(b) of the Criminal Procedure Code is explicit in providing that no appeal lies against the High Court's refusal to grant leave to appeal out of time. The applicant, having instructed a different advocate through his mother, is bound by the acts of his agent (the...
Source-derived case information.
- Citation
- [1985] KECA 12 (KLR)
- Parties
- Applicant: Atieno; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 5 of 1985
- Procedural Posture
- Criminal Application / Application for Leave to Reinstate Application for Leave to Appeal Out of Time
- Outcome
- application dismissed
- Legal Topics
- Extension of Time, Appeal Out of Time, Finality of High Court Decisions, Agency Principle in Litigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Atieno
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to Reinstate Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether an appeal lies to the Court of Appeal against the High Court's refusal to grant leave to appeal out of time under section 361(8)(b) of the Criminal Procedure Code.
- 2 Whether the applicant can avoid the consequences of his advocate's failure to file the appeal on time.
Ratio Decidendi
The Court of Appeal held that section 361(8)(b) of the Criminal Procedure Code is explicit in providing that no appeal lies against the High Court's refusal to grant leave to appeal out of time. The applicant, having instructed a different advocate through his mother, is bound by the acts of his agent (the advocate), and cannot escape the consequences of the failure to file the appeal within the prescribed period. The statutory provision is clear and final, and the Court has no jurisdiction to override it, regardless of the applicant's plea for justice. The application was therefore dismissed as incompetent and without merit.
Court Disposition
application dismissed
Orders
- The application for leave to reinstate the application for leave to appeal out of time is dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
Atieno v Republic
Court of Appeal, at Kisumu June 17, 1985
Gachuhi Ag JA
Criminal Application No NAI 5 of 1985 (KMU 2/85)
(Application from a ruling of the High Court at Kakamega, Aganyanya J,
Criminal Appeal No 78 of 1984)
Extension of time – appeal - application for leave to file appeal out of time - to reinstate an application for leave to appeal – effect of refusal by High Court – whether appeal lies against such a refusal - section 361(8)(b) of the Criminal Procedure Code.
Advocate – failure by advocate to file appal on time - consequences. The applicant gave instructions through his mother to a different advocate from one who originally handled the trial. No appeal was filed within the prescribed time. An application was made for leave to file the appeal out of time which was refused by the High Court.
Held:
1. Under section 361(8)(b) of the Criminal Procedure Code no appeal lies against a refusal by the High Court forleave to file the appeal out of time.
2. The principle of law is that the principle is bound by the acts of his agents who had authority to act.
3. While the applicant seeks justice the law has provided justice whether rightly or wrongly, there is nothing that can be done against the provision of he statute.
Application dismissed.
Cases
No cases referred to.
Statutes
Criminal Procedure Code (cap 75) sections 349, 361 8(b)
Advocates
Mr Bwonwonga for Republic
June 17, 1985, Gachuhi Ag JA delivered the following Ruling. The applicant is now applying for leave to reinstate an application for leave to appeal out of time. The matter was being handled by his Counsel when he was in jail. He gave instructions through his mother to a different advocate who was not originally in the trial to appeal. No appeal was filed within the time prescribed. This may have come to light when a n appeal was filed and possibly rejected after the expiry of the statutory period.
An appeal was made for leave to file the appeal out of time which was refused by the High Court.
Mr Bwonwanga on reading the provisions of section 361 8 (b) of Criminal Procedure Code states that no appeal from the decision of the High court for refusal as the refusal is final. The applicant cannot blame his counsel.
I quite agree that the applicant cannot blame his counsel and he is bound by the acts of his counsel. The principles of the law is that the principal is bound by the acts of his agents who had authority to act. On the other hand, the law does not permit the applicant to file an appeal where the application was refused under section 349 as provided by section 361 as amended by (8) (b) sub section which provision is that the refusal is final.
While the applicant seeks justice, the law was provided justice whether rightly or wrongly, there is nothing that can be done by this Court against the provision of the statute. This application is dismissed.