[2023] KEHC 1539 (KLR)
The court found that the appeal was filed outside the statutory period of 14 days after the delivery of judgment and sentence. There was no evidence that the appellant sought or obtained leave to appeal out of time. In the absence of such leave, the appeal was fatally incompetent and the court lacked jurisdiction to...
Source-derived case information.
- Citation
- [2023] KEHC 1539 (KLR)
- Parties
- Appellant: William Majanja Nyito; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 84 of 2019
- Procedural Posture
- Criminal Appeal / Ruling on Competence of Appeal
- Outcome
- appeal struck out as incompetent
- Judges
- RE Aburili
- Legal Topics
- Appeal Out of Time, Jurisdiction, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Majanja Nyito
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Competence of Appeal
Legal Issues
- 1 Whether the appeal was filed within the statutory period prescribed by law.
- 2 Whether leave to appeal out of time was sought and granted.
- 3 Whether the court has jurisdiction to entertain an appeal filed out of time without leave.
Ratio Decidendi
The court found that the appeal was filed outside the statutory period of 14 days after the delivery of judgment and sentence. There was no evidence that the appellant sought or obtained leave to appeal out of time. In the absence of such leave, the appeal was fatally incompetent and the court lacked jurisdiction to admit it for hearing. The appeal was therefore struck out as incompetent, and the file closed.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out as incompetent.
- The file is closed.
Full Case Text
Judgment text and source record
27 paragraphs
Nyito v Republic (Criminal Appeal 84 of 2019) [2023] KEHC 1539 (KLR) (21 February 2023) (Ruling)
Neutral citation: [2023] KEHC 1539 (KLR)
Republic of Kenya
In the High Court at Siaya
Criminal Appeal 84 of 2019
RE Aburili, J
February 21, 2023
Between
William Majanja Nyito
Appellant
and
Republic
Respondent
(An Appeal against the conviction and sentence of Hon. R.M. Oanda Ag. PM in Ukwala PM’s Court in Cr. Case No. 164 of 2013 on 22/07/2014)
Ruling
1. The appeal was filed on 9/12/2019 and has been pending for a very long time because the lower court file could not be availed. At one time and for quite a while, the Registry was calling for the lower court file from Bondo Law Courts yet the trial took place at Ukwala PM’s courts. And whereas Bondo Law Courts was responding and saying they did not have such a case file number, it took long before the Registry at the High Court realized its mistake.
2. The Petition/Memorandum of Appeal filed on 6/12/2019 is clear that the original case was from Ukwala vide Cr. 164/2013 yet the calling letters kept asking for Bondo Law Courts to avail to this court a non-existent file.
3. There is need for keenness on the part of the Registry staff to ensure that they read the court which originated the case to avoid misplaced calling letters as the one dated 11/8/2020 purporting to remind Bondo PM’s court to avail a file which was not in their custody. A similar letter was send on 27/5/2021 and despite the return comments on the latter letter, again followed by a letter of 13/7/2021, received on 16/7/2021, it took the Registry four months to 10/11/2021 to write a request called 1st reminder to Ukwala Law Courts. On the part of Ukwala Law Courts, they never responded to the 3 reminders until this court had to issue summons to the Court Administrator to appear in a civil matter, before this file was eventually brought on 17/2/2023.
4. Having said the above and calling upon the Registry staff and Court Administrators to be more vigilant in their work, I observe that the judgment in the lower court was delivered and sentence passed on 13/11/2014.
5. This appeal was filed on 9/12/2014.
6. There is no indication that leave to appeal out of time (after lapse of 14 days) was ever sought and granted to the convict applicant.
7. In the absence of an order or ruling for leave to appeal out of time, I find this appeal to be fatally incompetent and incapable of being admitted to hearing.
8. The jurisdiction of this court can only be invoked or exercised in matters which are live and not stale.
9. Accordingly, I find this appeal incompetent. It is hereby struck out.
10. The file is closed.
11. I so order.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 21STDAY OF FEBRUARY, 2023R.E. ABURILIJUDGE