[2023] KECA 1454 (KLR)
The court found that the respondent was not served with the application or the hearing notice, as evidenced by his absence and the fact that the hearing notice was sent to a prison where he was not an inmate, having been acquitted. Proceeding in the respondent's absence would be unfair and contrary to the principles...
Source-derived case information.
- Citation
- [2023] KECA 1454 (KLR)
- Parties
- Applicant: Republic; Respondent: Samwel Mogaka Nathan
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E280 of 2022
- Procedural Posture
- Criminal Application / Application for Extension of Time to Appeal
- Outcome
- Application stood over for proper service; no determination on merits.
- Judges
- JM Ngugi
- Legal Topics
- Extension of Time, Service of Process, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Samwel Mogaka Nathan
Respondent
Procedural Posture
Criminal Application / Application for Extension of Time to Appeal
Legal Issues
- 1 Whether the respondent was properly served with the application and hearing notice.
- 2 Whether it is fair to proceed with the application in the absence of the respondent who has not been served.
Ratio Decidendi
The court found that the respondent was not served with the application or the hearing notice, as evidenced by his absence and the fact that the hearing notice was sent to a prison where he was not an inmate, having been acquitted. Proceeding in the respondent's absence would be unfair and contrary to the principles of natural justice and the right to be heard. The court therefore directed the applicant to properly serve the respondent with both the application and the mention date before the Deputy Registrar, and to file an affidavit of service before the matter can be relisted for hearing.
Court Disposition
Application stood over for proper service; no determination on merits.
Orders
- The applicant is directed to obtain a case management date before the Deputy Registrar.
- The applicant must serve both the application and the mention date before the Deputy Registrar on the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
Republic v Nathan (Criminal Application E280 of 2022) [2023] KECA 1454 (KLR) (24 November 2023) (Order)
Neutral citation: [2023] KECA 1454 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Criminal Application E280 of 2022
JM Ngugi, JA
November 24, 2023
Between
Republic
Applicant
and
Samwel Mogaka Nathan
Respondent
(Being an application for leave to file an appeal out of time from the Judgment of the High Court of Kenya at Nyamira (Njagi, J.) dated 4th April, 2022 in HCCRA No. E002 of 2020)
Order
1. The application herein is dated October 5, 2022. It is an application by the State for extension of time to file an appeal against the judgment delivered by the High Court of Kenya sitting in Nyamira which was delivered on April 4, 2022. In the judgment, the learned Judge reversed the decision of the magistrate’s court and acquitted the respondent. The State believes the decision was wrong and will have serious implications for the victims of the alleged crime hence its decision to appeal.
2. The application was listed for hearing before me on July 23, 2023. The applicant filed written submissions. The respondent did not file any submissions. It soon became obvious that the respondent was never served with the hearing notice. Indeed, they were absent during the case management hearing before the Honourable Deputy Registrar raising questions if they were ever served with the application itself. The hearing notice was sent to Kibos Maximum Prison. However, the respondent is not an inmate having been acquitted by the High Court.
3. It would be unfair to the respondent for this application to proceed in their absence when they have not been served. Consequently, I direct the applicant to obtain a case management date before the Deputy Registrar and then to serve both the application and the mention date before the Deputy Registrar on the respondent; and then to duly file an affidavit of service. Thereafter, the application can be relisted for hearing.
4. Orders accordingly.
DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF NOVEMBER, 2023. JOEL NGUGI…………………………JUDGE OF APPEALI certify that this is a true copy of the originalDEPUTY REGISTRAR