[2024] KEHC 10082 (KLR)
The court found that the applicant was unable to comply with the original timeline for filing an appeal out of time due to the registry's failure to serve the order on the prison authorities. In the interest of justice, and recognizing that the lapse was not the applicant's fault, the court exercised its discretion...
Source-derived case information.
- Citation
- [2024] KEHC 10082 (KLR)
- Parties
- Applicant: Brian Nyasim; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E119 of 2024
- Procedural Posture
- Criminal Application / Ruling on Extension of Time to Appeal
- Outcome
- Order for extension of time to file appeal granted.
- Judges
- RE Aburili
- Legal Topics
- Robbery With Violence, Leave to Appeal Out of Time, Extension of Time, Criminal Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Nyasim
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Extension of Time to Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file an appeal out of time due to failure of service of the court order on prison authorities.
Ratio Decidendi
The court found that the applicant was unable to comply with the original timeline for filing an appeal out of time due to the registry's failure to serve the order on the prison authorities. In the interest of justice, and recognizing that the lapse was not the applicant's fault, the court exercised its discretion to enlarge the period for filing the appeal by a further seven days from the date of service of the order upon the applicant in prison. The court emphasized that procedural lapses not attributable to a party should not bar access to justice.
Court Disposition
Order for extension of time to file appeal granted.
Orders
- The order for leave to appeal out of time is reviewed and the timeline is enlarged by a further seven days from the date of service of this order upon the applicant in prison.
- Mention dates are recalled and this file is closed.
Full Case Text
Judgment text and source record
21 paragraphs
Nyasim v Republic (Criminal Application E119 of 2024) [2024] KEHC 10082 (KLR) (14 August 2024) (Ruling)
Neutral citation: [2024] KEHC 10082 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Application E119 of 2024
RE Aburili, J
August 14, 2024
Between
Brian Nyasim
Applicant
and
Republic
Respondent
(From the original conviction and sentence in WINAM SPM Criminal Case No. E213 of 2022)
Ruling
1. On 23/7/2024, the applicant was granted leave to file an appeal out of time from the judgment, conviction and sentence in Winan SPM Cr Case No. 213 of 2022 wherein he was charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to serve ten years imprisonment. The applicant was to file an appeal within seven days of the date of the order. The matter was then scheduled for mention on 30/7/2024 to confirm compliance.
2. On the latter date, nothing transpired. Regrettably, the registry intimates that the prisons authorities were never served or notified of the order for leave to appeal as issued by the court and therefore what that means is that the timelines were given in vain as they lapsed without the applicant getting the orders for compliance in time.
3. That being the case, and in the interest of justice, I hereby review the order on timelines given in the order for leave to appeal out of time which has lapsed and enlarge the same by a further seven days from date of service of the order herein upon the applicant in prison.
4. Signal to issue forthwith.
5. As the appeal shall be filed in a different separate file, the mention dates are recalled and this file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 14THDAY OF AUGUST, 2024R.E. ABURILIJUDGE