[2024] KEHC 14159 (KLR)
The court held that although the appeal was initially struck out for being filed out of time without leave, the subsequent production and confirmation of the order granting leave to appeal out of time justified reviewing and setting aside the earlier order. The court emphasized that it is the duty of parties to...
Source-derived case information.
- Citation
- [2024] KEHC 14159 (KLR)
- Parties
- Appellant: Lawrence Korie; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E069 of 2024
- Procedural Posture
- Criminal Appeal / Ruling on Application for Reinstatement of Appeal
- Outcome
- Appeal reinstated and admitted for hearing.
- Judges
- RE Aburili
- Legal Topics
- Appeal Out of Time, Leave of Court, Reinstatement of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Korie
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Reinstatement of Appeal
Legal Issues
- 1 Whether the appeal was properly struck out for being filed out of time without leave of court.
- 2 Whether the existence of a prior order granting leave to appeal out of time justified reinstatement of the appeal.
Ratio Decidendi
The court held that although the appeal was initially struck out for being filed out of time without leave, the subsequent production and confirmation of the order granting leave to appeal out of time justified reviewing and setting aside the earlier order. The court emphasized that it is the duty of parties to disclose or file the order for leave when filing an appeal out of time, as appeals and miscellaneous applications are filed in different files. However, since leave had in fact been granted and the omission was procedural, the interests of justice required that the appeal be reinstated and admitted for hearing.
Court Disposition
Appeal reinstated and admitted for hearing.
Orders
- The order of 11th November 2024 striking out the appeal is reviewed and set aside.
- The appeal is reinstated and the file reopened.
Full Case Text
Judgment text and source record
25 paragraphs
Korie v Republic (Criminal Appeal E069 of 2024) [2024] KEHC 14159 (KLR) (15 November 2024) (Ruling)
Neutral citation: [2024] KEHC 14159 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Appeal E069 of 2024
RE Aburili, J
November 15, 2024
Between
Lawrence Korie
Appellant
and
Republic
Respondent
(From the original conviction and sentence in Senior Principal Magistrate’s Court Criminal Case No. E057 of 2024 at Tamu)
Ruling
1. On 11th November 2024, this court struck out this appeal on account that it was filed out of time without leave of court extending time for filing the same.
2. Counsel for the Appellant had filed copy of the order extending time for filing of the appeal out of time issued vide HC Criminal Misc. No. E147 of 2024. The Appellant never disclosed on the body of the appeal that leave to appeal out of time was granted and therefore this court could not take judicial notice of leave granted in a Miscellaneous file which was closed.
3. The duty of parties filing appeals out of time with leave of court is to disclose or file the appeal with copy of the order for leave since appeals are filed in totally different files.
4. Having confirmed that leave to appeal out of time was sought and granted by this court in HC Criminal Misc. Application No. E147 of 2024, I hereby review and set aside the order of 11th November 2024 summarily rejecting this appeal and striking out the appeal. I substitute thereof with an order reinstating the appeal and reopening the file.
5. I consequently admit the appeal to hearing.
6. The Appellant is directed to file and serve a complete record of appeal now that the lower court file is available in this file, within 21 days of this Ruling.
7. Mention in the new term on 22nd January 2025 for directions on appeal.
8. The Appellant to serve the Respondent State.
9. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 15TH DAY OF NOVEMBER, 2024. R. E. ABURILIJUDGE