[1998] KECA 204 (KLR)
The Court of Appeal found that the applicant was not given an opportunity to be heard on his application for leave to file an appeal out of time, as confirmed by both the applicant and the State Counsel. The failure by the single judge to allow the parties to canvass the application amounted to a breach of the right...
Source-derived case information.
- Citation
- [1998] KECA 204 (KLR)
- Parties
- Applicant: Nicholas Kioko; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 5 of 1998
- Procedural Posture
- Criminal Application / Application for Leave to File Appeal Out of Time
- Outcome
- Application allowed; order of dismissal set aside; leave granted to file appeal out of time.
- Legal Topics
- Leave to Appeal Out of Time, Procedural Fairness, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Kioko
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant was accorded an opportunity to be heard on his application for leave to file an appeal out of time.
- 2 Whether the dismissal of the application by the single judge without hearing the applicant was proper.
Ratio Decidendi
The Court of Appeal found that the applicant was not given an opportunity to be heard on his application for leave to file an appeal out of time, as confirmed by both the applicant and the State Counsel. The failure by the single judge to allow the parties to canvass the application amounted to a breach of the right to be heard, a fundamental aspect of procedural fairness. Consequently, the order of dismissal was set aside, and leave was granted to the applicant to file his appeal out of time within 14 days.
Court Disposition
Application allowed; order of dismissal set aside; leave granted to file appeal out of time.
Orders
- The order of dismissal by the single judge is set aside.
- Leave is granted to the applicant to file his appeal out of time within 14 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, TUNOI & PALL, JJ.A.)
CRIMINAL APPLICATION NO. NAI. 5 OF 1998
BETWEEN
NICHOLAS KIOKO ....................................................................................................APPLICANT
AND
REPUBLIC............................................................................................................RESPONDENT
(Appeal from a Judgment of the High Court of Kenya at Kisii (Mr. Justice Mbaluto) dated 20th November, 1996 in H.C.CR. NO. 48 OF 1996) ******************
RULING OF THE COURT
The applicant complains that the learned single judge of this court did not grant him an opportunity to pursue his application for leave to file his appeal out of time. The learned State Counsel actually confirms this and states that she, too, did not say more than a sentence as regards "delay" by the applicant in preferring his intended appeal. Though we are to fault the Judge in this regard, it seems that the record of the proceedings confirms the averment by the applicant that he was not accorded opportunity to canvass his application.
With great respect to the learned single Judge of this Court we will set aside his order of dismissal. We will grant leave to the applicant to file his appeal out of time. This he must do within 14 days hereof.
Made and delivered at Nairobi this 4th day of November, 1998.
J. E. GICHERU ...............
JUDGE OF APPEAL
P. K. TUNOI ...............
JUDGE OF APPEAL
G. S. PALL ...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR