[2001] KECA 84 (KLR)
The court held that even if there is a question as to whether an appeal lies, that issue should be addressed by the appellate court at the hearing of the appeal itself, not at the stage of considering leave to appeal out of time. Since the appeal had already been filed, the court found it inappropriate to refuse the...
Source-derived case information.
- Citation
- [2001] KECA 84 (KLR)
- Parties
- Applicant: Robert Araka Mose; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 32 of 2001
- Procedural Posture
- Criminal Application / Application for Leave to File Appeal Out of Time
- Outcome
- application allowed
- Legal Topics
- Criminal Appeal Procedure, Leave to Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Araka Mose
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Leave to File Appeal Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an appeal out of time.
- 2 Whether the existence of a potential bar to appeal should prevent the granting of leave.
Ratio Decidendi
The court held that even if there is a question as to whether an appeal lies, that issue should be addressed by the appellate court at the hearing of the appeal itself, not at the stage of considering leave to appeal out of time. Since the appeal had already been filed, the court found it inappropriate to refuse the application for leave. Accordingly, the application was allowed and the appeal was deemed to have been filed within the time limited by law.
Court Disposition
application allowed
Orders
- Criminal Appeal No. 134 of 2001 filed on 14th October, 2001 is deemed to have been filed within the time limited by law.
Full Case Text
Judgment text and source record
3 paragraphs
IN THE COURT OF APPEAL AT KISUMU CORAM: OMOLO, J.A. (IN CHAMBERS) CRIMINAL APPLICATION NO. NAI. 32 OF 2001 BETWEEN ROBERT ARAKA MOSE .................................. APPLICANT AND REPUBLIC ................................................. RESPONDENT (Application for leave to file an appeal out of time from a judgment of the High Court of Kenya at Kisii (Mr. Justice Waweru) dated 11th February, 2000 in H.C.CR.APP NO. 315 "B" OF 1999) ************************ R U L I N G:
It may be that no appeal lies as alleged by Mr. Kivihya but I think that can be taken before the Court which will hear the appeal. The appeal has already been filed and I do not think it would be right for me to refuse this motion. I allow the same and order that Criminal Appeal No. 134 of 2001 filed on 14th October, 2001 be and is hereby deemed to have been filed with the time limited by law. I so order. Dated and delivered at Kisumu this 19th day of November, 2001.
R. S. C. OMOLO JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR