[2018] KECA 226 (KLR)
The court exercised its discretion to allow the application for extension of time to file a notice of appeal, taking into account that the applicant had been sentenced to death, the uncontroverted averment that a notice of appeal was lodged in time but could not be traced, the fact that the death sentence is no...
Source-derived case information.
- Citation
- [2018] KECA 226 (KLR)
- Parties
- Applicant: Dismas Sikuku Fwamba alias Paul; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 6 of 2018
- Procedural Posture
- Criminal Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application allowed
- Judges
- AM Githinji
- Legal Topics
- Extension of Time, Notice of Appeal, Murder Conviction, Death Sentence, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dismas Sikuku Fwamba alias Paul
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 extension of time to file a notice of appeal out of time.
- 2 Whether the applicant had previously lodged a notice of appeal in time which cannot be traced.
Ratio Decidendi
The court exercised its discretion to allow the application for extension of time to file a notice of appeal, taking into account that the applicant had been sentenced to death, the uncontroverted averment that a notice of appeal was lodged in time but could not be traced, the fact that the death sentence is no longer mandatory, and that the application was not opposed by the respondent. The combination of these factors justified granting the applicant an opportunity to file a fresh notice of appeal to ensure his right of appeal is not defeated by procedural technicalities or administrative lapses beyond his control.
Court Disposition
application allowed
Orders
- The applicant is granted leave to file a notice of appeal within 7 days from the date of the ruling.
Full Case Text
Judgment text and source record
25 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E. M. GITHINJI, JA. (IN CHAMBERS)
CRIMINAL APPLICATION NO. 6 OF 2018
BETWEEN
DISMAS SIKUKU FWAMBA ALIAS PAUL ...................................APPLICANT
VERSUS
REPUBLIC.......................................................................................RESPONSENT
(Being an application to file appeal out of time from the High Court of Kenya at Bungoma
in
HIGH COURT CR. CASE NO. 27 OF 2005)
***********************************
RULING
This is an application for extension of time within which to file a Notice of Appeal.
Applicant depones in the supporting affidavit that after he was convicted and sentenced to suffer death for the offence of murder contrary to section 204 of the Penal Code, he lodged a Notice of Appeal in time while at Bungoma Prison and that after he was transferred to Kibos Maximum Prison it has come to his knowledge that his notice of appeal cannot be traced and that his appeal has not been registered.
Mr. Ketoo, the learned prosecuting counsel for the respondent does not oppose the application.
Having regard to the fact that the applicant has been sentenced to death; that the averment that the applicant indeed lodged a notice of appeal in time has not been controverted, the fact that death sentence is not now mandatory and that the application is not opposed, I exercise my discretion in favour of the applicant.
Accordingly, the application is allowed. The applicant to file a notice of appeal which automatically institutes an appeal within 7 days from the date hereof.
DATED and Delivered at Kisumu this 15th day of October, 2018.
E. M. GITHINJI
....................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
DEPUTY REGISTRAR