[1999] KECA 81 (KLR)
The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal, as he had instructed an advocate to file the appeal but was unaware that no appeal had been filed. The court also determined that the intended appeal was not frivolous, as evidenced by the grounds raised in the...
Source-derived case information.
- Citation
- [1999] KECA 81 (KLR)
- Parties
- Applicant: Christopher Nyambayo Nyamuko; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 3 of 1998
- Procedural Posture
- Criminal Application / Application for Leave to Appeal Out of Time
- Outcome
- application allowed
- Judges
- E Owuor
- Legal Topics
- Leave to Appeal Out of Time, Manslaughter Conviction, Appeal Rights, Extension of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Nyambayo Nyamuko
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time against conviction and sentence for manslaughter.
- 2 Whether the intended appeal raises arguable grounds.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the delay in filing the appeal, as he had instructed an advocate to file the appeal but was unaware that no appeal had been filed. The court also determined that the intended appeal was not frivolous, as evidenced by the grounds raised in the memorandum of appeal and by reference to a similar conclusion reached in a related application involving a co-appellant. Accordingly, the court exercised its discretion to grant leave to file the appeal out of time.
Court Disposition
application allowed
Orders
- The applicant is granted leave to file his memorandum of appeal within 14 days from the date of this order.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU (CORAM: OWUOR, J.A. (IN CHAMBERS) CRIMINAL APPLICATION NO. NAI. 3 OF 1998 BETWEEN
CHRISTOPHER NYABAYO NYAMUKO .........................APPLICANT AND REPUBLIC ..............................................................RESPONDENT
(Application for leave to appeal out of time from a Judgment of the High Court of Kenya at Kisii (Mbaluto, J) dated 20th November, 1996 in H.C.C.CR.C NO. 48 OF 1996) ******************* R U L I N G
The applicant Christopher Nyambayo Nyamuko was jointly charged with three other persons with the offence of Murder. He was tried and convicted of Manslaughter and sentenced to three years imprisonment. He was disatisfied with the Conviction and Sentence, he decided to appeal and to that end instructed an advocate (M/s Mainye) .
He did not know that no appeal had been preferred on his behalf till he appeared before Court on 24th March, 1998 for the purpose of having the appeal heard. He still wants to canvas his appeal hence this application filed on 15th of June, 1998 for extension of time for filing his appeal out of time. He is convinced that although he has since served his Imprisonment Sentence his appeal has merit. In the memorandum of appeal he lists at least nine grounds upon which he intends to take up in the appeal. A casuary glance at the grounds raised I am satisfied that the appeal is not frivolous. If I may also add this is the same conclusion that this Court has arrived at in Criminal Application No. Nai.4 of 1998 which involved one of the applicants Co-appellant. Consequently, I hereby grant the applicant leave to file his Memorandum of appeal within 14 days from the date of this order.
Dated and delivered at Kisumu on this 19th day of March, 1999.
E. OWUOR
.......................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR