[2023] KEHC 1931 (KLR)
The court found that the applicant was unable to file his appeal within the time allowed due to the unavailability of the lower court judgment and proceedings, not due to his own negligence. The court held that it was in the interest of justice to allow the application for extension of time and to reinstate the...
Source-derived case information.
- Citation
- [2023] KEHC 1931 (KLR)
- Parties
- Applicant: Boniface Mwandaka Kyosi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E056 of 2022
- Procedural Posture
- Criminal Appeal / Ruling on Application for Reinstatement of Appeal and Review of Striking Out Order
- Outcome
- Application allowed; appeal reinstated for hearing.
- Judges
- DR Kavedza
- Legal Topics
- Extension of Time, Appeal Out of Time, Functus Officio, Right to Be Heard, Review of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Mwandaka Kyosi
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Application for Reinstatement of Appeal and Review of Striking Out Order
Legal Issues
- 1 Whether the appeal should be admitted to hearing despite being filed out of time.
- 2 Whether the previous order striking out the appeal should be set aside and the appeal reinstated.
- 3 Whether the court is functus officio in relation to the application for review.
Ratio Decidendi
The court found that the applicant was unable to file his appeal within the time allowed due to the unavailability of the lower court judgment and proceedings, not due to his own negligence. The court held that it was in the interest of justice to allow the application for extension of time and to reinstate the appeal, as the applicant had not been heard on the merits and no prejudice would be suffered by the respondent. The court rejected the respondent's argument that it was functus officio, noting that there had been no hearing on the merits and that reviewing the previous order was not tantamount to sitting on appeal of a decision by a court of concurrent jurisdiction.
Court Disposition
Application allowed; appeal reinstated for hearing.
Orders
- The application for extension of time and reinstatement of the appeal is allowed.
- The appeal is reinstated for hearing.
Full Case Text
Judgment text and source record
27 paragraphs
Kyosi v Republic (Criminal Appeal E056 of 2022) [2023] KEHC 1931 (KLR) (Crim) (15 March 2023) (Ruling)
Neutral citation: [2023] KEHC 1931 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Appeal E056 of 2022
DR Kavedza, J
March 15, 2023
Between
Boniface Mwandaka Kyosi
Applicant
and
Republic
Respondent
Ruling
1. This appeal has been placed before me for directions. I note that in Misc Cr Application No E288 of 2020, the appellant was granted leave to file an appeal out of time by Ong’udi, J on November 26, 2020. The leave was granted on condition that the appellant do file his intended appeal within 10 days of November 26, 2020.
2. The appellant filed his appeal on April 14, 2022 being one year and four months after expiry of the leave granted by the court. However, C Githua, J struck out the appeal for being incompetent and marked the file as closed.
3. The issue for determination is whether the appeal should be admitted to hearing and the orders having the appeal struck out be set aside.
Analysis and determination 4. It is a primary consideration in criminal proceedings that both the state and the defence are given leeway to ventilate their positions in court for substantive justice to be done as envisaged in article 159 of theConstitution (2010).
5. In that regard, I have not seen any line of submissions by the prosecution praying for dismissal of the appeal. There was no hearing on merit of the appeal. Ms Odour, the prosecution counsel, has argued that this court is functus officio and that the matter should proceed to the Court of Appeal. However, the record clearly indicates that there was no hearing of the appeal.
6. The question that follows is, what will the Court of Appeal hear? It is my considered view that there is nothing to be heard at all. Nonetheless, no prejudice will be suffered by the Respondent if I review the ruling by Cecilia, J dated April 14, 2022 striking out the appeal.
7. I therefore disagree that dealing with the application for review is tantamount to sitting on an appeal of a decision by a court of concurrent jurisdiction.
8. In Abdulla Lule v R (1960) EA 21, the application to appeal out of time was allowed because the applicant did not obtain the judgement and proceedings of the lower court within 14 days to enable him to appeal.
9. Similarly, I do note that the appellant herein was convicted and sentenced on October 23, 2019. Surprisingly, he has never been provided with copies of the judgment and proceedings to enable him lodge his appeal. Indeed, as I write this ruling, the trial court record has not yet been availed to this court. It only follows that the applicant meets the threshold for extension of time to file his appeal out of time under section 349 of the Criminal Procedure Code. Such delay was not occasioned by his negligence but rather the unavailability of the lower court file. It is in the interest of justice that he ought not to be dismissed unheard.
10. It is on this basis that I allow the application and consequently, the appeal is reinstated for hearing. I hereby direct that the record of appeal be served upon the respondent by the appellant within 30 days to enable the respondent to file its grounds of objection.
11. This matter will be mentioned on April 18, 2023 for directions.
RULING READ, DELIVERED AND SIGNED THIS 15TH DAY OF MARCH, 2023D. KAVEDZAJUDGEIn the presence of: