[1998] KECA 144 (KLR)
The court found that the applicants had promptly instructed their advocate to file a notice of appeal, but the advocate failed to do so within the prescribed time for reasons unknown to the applicants. Given that the delay was not attributable to the applicants' own conduct and that their advocate had since died,...
Source-derived case information.
- Citation
- [1998] KECA 144 (KLR)
- Parties
- Applicant: Lucy Muthoni Mwangi; Applicant: Mercy Nduta Kariuki; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 5 of 1997
- Procedural Posture
- Criminal Appeal Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- Application allowed. Time for filing notice of appeal extended to include 12th October 1995.
- Legal Topics
- Extension of Time, Notice of Appeal, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Muthoni Mwangi
Applicant
Mercy Nduta Kariuki
Applicant
Republic
Respondent
Procedural Posture
Criminal Appeal Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the court should exercise its discretion to extend time for filing a notice of appeal where delay was caused by the applicants' advocate.
- 2 Whether the notice of appeal filed out of time by the deceased advocate can be deemed as properly filed.
Ratio Decidendi
The court found that the applicants had promptly instructed their advocate to file a notice of appeal, but the advocate failed to do so within the prescribed time for reasons unknown to the applicants. Given that the delay was not attributable to the applicants' own conduct and that their advocate had since died, the court exercised its discretion to extend the time for filing the notice of appeal. The notice filed on 12th October 1995 was deemed to have been filed on time, ensuring that the applicants were not prejudiced by their advocate's failure. The respondent did not oppose the application, and the court considered it proper to grant the extension in the interests of justice.
Court Disposition
Application allowed. Time for filing notice of appeal extended to include 12th October 1995.
Orders
- Time within which the notice of appeal was to be filed is extended to include 12th October 1995.
- The notice of appeal filed on 12th October 1995 is deemed to have been filed on time.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: BOSIRE J.A (IN CHAMBERS) CRIMINAL APPEAL(APPLICATION) NO.5 OF 1997
BETWEEN
LUCY MUTHONI MWANGI
MERCY NDUTA KARIUKI .................................APPLICANTS
AND
REPUBLIC ............................................RESPONDENT
(Appeal from a conviction, judgment, decree, order, or as the case may be) of the High Court of Kenya at Nairobi (Mr Justice V.V. Patel) dated 27th July 1995
in
H.C.CR.A. No. 297, 298 of 1995
*************************
R U L I N G
This is an application for an extension of time within which to lodge an appeal expressed to be brought under rule 4 of the Rules of this Court. The applicants unsuccessfully appealed to the superior court against their respective convictions and sentence imposed on them by the Senior Resident Magistrate's Court at Nairobi for the offence of being in possession of suspected stolen property. They were then represented by an advocate, Mr Ndungi, who has since died. The advocate did not file a notice of appeal to challenge the superior court's decision within the time prescribed under rule 5 of the Court Rules, but did so about 76 days after the decision to be appealed against. The applicants allege that they promptly instructed him to file a notice of appeal declaring their intention to appeal against the superior court's decision but he failed to do so for reasons which they are unaware of. They now apply that the court exercises its discretion and extend the time within which to file the notice of appeal for such period as to include the date their deceased counsel filed the notice of appeal a copy of which is on record.
Miss Kamau, senior state counsel, does not oppose the application, properly so in my view, as the circumstances of this matter clearly show that the applicants may never come to know why their counsel who was duly and promptly instructed by them did not file the notice of appeal timeously. In exercise of my judicial discretion I extend the time within which the notice of appeal in this matter was to be filed for such period as to include 12th October, 1995, when the applicant's counsel filed a notice of appeal and order that that notice be deemed to have been filed on time. Order accordingly.
Dated and delivered at Nairobi this 14th day of January 1998.
S.E.O. BOSIRE
......................
JUDGE OF APPEAL