[1999] KECA 57 (KLR)
The Court of Appeal found that the applicant had demonstrated sufficient cause for the delay in filing his appeal, as the failure to file was due to the inaction of his advocate rather than any fault of the applicant. The court noted that the intended appeal was not based on frivolous grounds, as it raised arguable...
Source-derived case information.
- Citation
- [1999] KECA 57 (KLR)
- Parties
- Applicant: Peter Bunduki; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 4 of 1998
- Procedural Posture
- Criminal Application / Application for Leave to Appeal Out of Time; Reference From Single Judge to Full Bench
- Outcome
- application allowed; order of single judge set aside; leave to appeal out of time granted
- Legal Topics
- Leave to Appeal Out of Time, Conviction and Sentence, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Bunduki
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to Appeal Out of Time; Reference From Single Judge to Full Bench
Legal Issues
- 1 Whether the applicant should be granted leave to appeal out of time against conviction and sentence for manslaughter.
- 2 Whether the failure of the applicant's advocate to file the appeal constitutes sufficient cause for extension of time.
Ratio Decidendi
The Court of Appeal found that the applicant had demonstrated sufficient cause for the delay in filing his appeal, as the failure to file was due to the inaction of his advocate rather than any fault of the applicant. The court noted that the intended appeal was not based on frivolous grounds, as it raised arguable points regarding the sufficiency of evidence and the consideration of extraneous matters by the trial judge. In the interests of justice, the court set aside the single judge's order dismissing the application and granted the applicant leave to file the notice of appeal and related documents within specified timeframes. The court emphasized that litigants should not be...
Court Disposition
application allowed; order of single judge set aside; leave to appeal out of time granted
Orders
- The order of the single judge dismissing the application is set aside.
- The applicant is granted leave to file the notice of appeal within fourteen (14) days from the date of this order.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL
AT KISUMU
CORAM: CHESONI, CJ., OMOLO & LAKHA, JJ.A.
CRIMINAL APPLICATION NO. NAI 4 OF 1998
BETWEEN
PETER BUNDUKI ........................................APPLICANT AND REPUBLIC .............................................RESPONDENT
(Application for leave to appeal out of time in an appeal from
a conviction and sentence of the High Court of Kenya at
Kisii (Mbaluto J) dated 20th November, 1996
in
H.C.CR.C. NO. 48 OF 1996)
******************* RULING OF THE COURT
The applicant/appellant was convicted of manslaughter and sentenced to three years' imprisonment. He was dissatisfied with his conviction and sentence and as he wished to appeal; he instructed a firm of advocates (M/s Mainye) to prosecute the intended appeal. It appears the advocate did not take action on the instructions of the appellant. All along the appellant was under the impression that an appeal had been filed till 24th March, 1998 when he came to the Court of Appeal for the hearing of his appeal and was informed that no appeal had been filed.
On 25th March, 1998 the appellant, in person, lodged an application for leave to appeal out of time. That application was heard by Kwach, J.A. who dismissed it. The appellant has now come to us on a reference.
In the intended memorandum of appeal the appellant alleges that his guilt was not proved beyond reasonable doubt and the learned trial Judge took into account extraneous matters. The intended appeal is not based on frivolous grounds. We think the appellant should be heard on his appeal. Consequently, the single Judge's order dismissing the application is set aside. We grant the appellant leave to file the notice of appeal within fourteen (14) days from the date of this order and thereafter to file the memorandum of appeal and record of appeal within a further fourteen (14) days. If the appellant does not wish to file a fresh memorandum of appeal let the petition of appeal filed on 26th March, 1998 be accepted as filed within the extended time.
Dated and delivered at Kisumu this 16th day of March, 1999.
Z. R. CHESONI --------------- CHIEF JUSTICE
R. S. C. OMOLO --------------- JUDGE OF APPEAL
A. A. LAKHA --------------- JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR