[2024] KECA 1264 (KLR)
The court found that, according to the respondent and the evidence on record, the applicant's appeal was filed within the prescribed time under the applicable rules for prisoners. Therefore, the application for leave to appeal out of time was unnecessary. However, to avoid prejudice in the event the notice of appeal...
Source-derived case information.
- Citation
- [2024] KECA 1264 (KLR)
- Parties
- Applicant: Hezekiah Njoroge Kanyake alias Viathe; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E040 of 2024
- Procedural Posture
- Criminal Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application for leave to appeal out of time found unnecessary; applicant granted fourteen days to lodge notice of appeal if not already done.
- Judges
- S ole Kantai
- Legal Topics
- Leave to Appeal Out of Time, Procedure for Prisoners, Notice of Appeal, Appeal Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezekiah Njoroge Kanyake alias Viathe
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against conviction and sentence.
- 2 Whether the application for leave to appeal out of time is necessary given the procedural rules for prisoners.
Ratio Decidendi
The court found that, according to the respondent and the evidence on record, the applicant's appeal was filed within the prescribed time under the applicable rules for prisoners. Therefore, the application for leave to appeal out of time was unnecessary. However, to avoid prejudice in the event the notice of appeal was not filed on time, the court granted the applicant fourteen days from the date of the ruling to lodge the notice of appeal, if not already done. This approach ensures the applicant's right of appeal is preserved while adhering to procedural requirements.
Court Disposition
Application for leave to appeal out of time found unnecessary; applicant granted fourteen days to lodge notice of appeal if not already done.
Orders
- The applicant to lodge Notice of Appeal (if not already done on time) within fourteen (14) days of the date of the ruling.
Full Case Text
Judgment text and source record
21 paragraphs
Kanyake alias Viathe v Republic (Criminal Application E040 of 2024) [2024] KECA 1264 (KLR) (20 September 2024) (Ruling)
Neutral citation: [2024] KECA 1264 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Criminal Application E040 of 2024
S ole Kantai, JA
September 20, 2024
Between
Hezekiah Njoroge Kanyake alias Viathe
Applicant
and
Republic
Respondent
(Being an appeal against the conviction and sentence from the Judgment of the High Court at Nakuru (M. Odero, J.) delivered on 23rd March, 2018inH.C. Criminal Case No. 60 of 2012)
Ruling
1. The applicant Hezekiah Njoroge Kanyake alias Viathe applies that his application be certified urgent “…and be heard on priority basis as of the procedure of a pauper.”; that he be granted leave to appeal out of time against the conviction and sentence of 30 years imprisonment by Odero, J. on 23rd March, 2018 in the High Court at Nakuru Criminal Case No. 60 of 2012. He says in a supporting affidavit that the offence to which he was convicted was murder; that upon conviction and sentence his relatives promised to assist him to file an appeal but they did not; that it had since dawned on him that his relatives did not file an appeal due to high lawyer fees demanded and he beseeches the court for leave to appeal out of time stating that his appeal has overwhelming chances of success as it raises “…candid points of law and facts…” He has attached a homemade Memorandum of Appeal where 2 grounds of appeal are set out.
2. There are written submissions by the respondent who explains the effect of rule 69 of the Court of Appeal Rules, 2022 on the procedure where an appellant is in prison. It is submitted that the appeal by the appellant was filed on time and the application for leave to appeal out of time is unnecessary.
3. The applicant attached an undated Notice of Appeal endorsed by the Officer-in Charge, Nakuru Main Prison.
4. The respondent takes the position that appeal was filed on time. My view is that there is nothing lost if the position taken by the respondent is correct.
5. Let the applicant lodge Notice of Appeal (if he had not done so on time) within fourteen (14) days of today.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF SEPTEMBER, 2024. S. ole KANTAI..................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR