[1997] KECA 372 (KLR)
The court found that the applicant's failure to file the notice of appeal within the statutory period was due to the error of his former advocates, who misunderstood the procedural requirements by waiting for copies of proceedings instead of filing the notice. The court held that it would be unjust to deprive the...
Source-derived case information.
- Citation
- [1997] KECA 372 (KLR)
- Parties
- Applicant: Peter Gatonye Kagimbi; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 12 of 1997
- Procedural Posture
- Criminal Application / Application for Extension of Time to File Notice of Appeal
- Outcome
- application allowed
- Judges
- GS Pall
- Legal Topics
- Extension of Time, Right of Appeal, Procedural Default
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Gatonye Kagimbi
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Extension of Time to File Notice of Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file and serve the notice of appeal after the statutory period had lapsed due to the advocates' error.
- 2 Whether the applicant should be deprived of his right of appeal due to the mistake of his former advocates.
Ratio Decidendi
The court found that the applicant's failure to file the notice of appeal within the statutory period was due to the error of his former advocates, who misunderstood the procedural requirements by waiting for copies of proceedings instead of filing the notice. The court held that it would be unjust to deprive the applicant of his right of appeal because of his advocates' mistake. Exercising its discretion under rule 4 of the Court of Appeal Rules, the court allowed the application and extended the period for filing the notice of appeal, directing that it be filed within 7 days.
Court Disposition
application allowed
Orders
- The period for filing the notice of appeal is extended under rule 4 of the Court of Appeal Rules.
- The notice of appeal shall be filed within 7 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: PALL J.A. (IN CHAMBERS)
CRIMINAL APPLICATION NO. NAI.12 OF 1997
BETWEEN
PETER GATONYE KAGIMBI...................................APPLICANT
AND
REPUBLIC.........................................................RESPONDENT
(An application for extension of time to file and serve Notice of Appeal in an intended appeal from a conviction and Judgment of the High court of Kenya at Nairobi (Mr Justice Oguk) dated 17th June, 1996
in
CR. APPEAL NO. 1558 OF 1992) *******************
R U L I N G
The applicant wishes to appeal to this court which would be a second appeal. Mr Rebeiro says that the appeal is gong to be on a point of law involving the expert evidence adduced in the trial court. The applicant duly instructed his advocates m/s Waruhiu & Muite, a well known firm to file the appeal. Under r.58(1) of our Rules any person who desires to appeal to the Court of Appeal shall give notice in writing which shall be lodged in sexduplicate with the registrar of the superior court within 14 days of the date of the decision sought to be appealed from and the notice of appeal shall institute the appeal. Instead of instituting the appeal by the mere filing of the notice of appeal the applicant's former advocates applied for copies of the proceedings and had been waiting for the said copies. Under r.60 the record of appeal is to be prepared by the registrar of the superior court and not by the appellant.
Because of this lapse on the part of the applicant's former advocates no notice of appeal has been lodged. I do not see any reason why the applicant should suffer and be deprived of his right of appeal because of the sin of his former advocates.
I accordingly allow the application and extend the period for filing the notice of appeal under r.4 of the Rules. The notice of appeal shall be filed within 7 days.
Dated and delivered at Nairobi this 1st day of October, 1997.
G. S. PALL
.............................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR