[2003] KECA 88 (KLR)
The court found that despite the disappearance of the superior court file, the applicant retains a constitutional right to appeal his conviction and sentence. The absence of the file is not attributable to the applicant, and denying him the opportunity to appeal would violate his rights. Therefore, the court...
Source-derived case information.
- Citation
- [2003] KECA 88 (KLR)
- Parties
- Applicant: Peter Odhiambo Odhiambo; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 49 of 2002
- Procedural Posture
- Criminal Application / Application for Extension of Time to File Appeal
- Outcome
- Application allowed. Extension of time to file appeal granted.
- Legal Topics
- Extension of Time, Right of Appeal, Conviction and Sentence, Missing Court Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Odhiambo Odhiambo
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Extension of Time to File Appeal
Legal Issues
- 1 Whether the applicant should be granted an extension of time to file an appeal against conviction and sentence.
- 2 Whether the applicant's constitutional right of appeal is affected by the disappearance of the court file.
Ratio Decidendi
The court found that despite the disappearance of the superior court file, the applicant retains a constitutional right to appeal his conviction and sentence. The absence of the file is not attributable to the applicant, and denying him the opportunity to appeal would violate his rights. Therefore, the court exercised its discretion to extend the time for filing an appeal by 30 days and directed the relevant authorities to assist in tracing the necessary documents to facilitate the appeal process.
Court Disposition
Application allowed. Extension of time to file appeal granted.
Orders
- Time for filing an appeal extended by 30 days from the date of the ruling.
- Deputy Registrar of the superior court at Kisumu, prison authorities, and Attorney-General’s Chambers to trace relevant documents and assist the applicant to lodge his appeal.
Full Case Text
Judgment text and source record
6 paragraphs
REPULIC OF KENYA
IN THE COURT OF APPEAL AT KISUMU
CORAM: KWACH, J.A. (IN CHAMBERS) CRIMINAL APPLICATION NO. NAI. 49 OF 2002 (KSM.18/2002)
BETWEENPETER ODHIAMBO ODHIAMBO……....……………… APPLICANTANDREPUBLIC …………………………………………….. RESPONDENT(An application for extension of time to file an appeal out of time in an intended appeal from a conviction and sentence of the High Court of Kenya at Kisumu (Mr. Justice Mango) dated 9thMarch, 1992in H.C.CR.CASE NO. 8 OF 1992) ***********R U L I N G
This applicant was apparently convicted of murder and sentenced to death around 1993. The superior court file has not been traced and no one seems to know what really happened and so I have to rely entirely on the account coherent may be due to the length of time he has been in prison. He was arrested in September 1991 after he apparently killed his own mother.
When I asked him to urge his application he simply told me to let him go back home. Since he has filed this motion I had to glean his intention from the bare material on the file. Notwithstanding the disappearance of the court file the applicant has a constitutional right to lodge an appeal against his conviction and sentence. I accordingly allow his application and extend the time for filing an appeal by 30 days from today. To enable the applicant to lodge his appeal, the Deputy Registrar of the superior court at Kisumu, the prison authorities and the Attorney-General’s Chambers are hereby ordered to trace the relevant documents and assist the applicant to lodge his appeal.Dated and delivered at Kisumu this 25th day of March, 2003. R. O. KWACH………………………….JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR