[2021] KEHC 9476 (KLR)
The court found that although there was no error in its previous order striking out the appeal for being filed out of time without leave, the failure to annex or cite the order granting leave was a procedural lapse attributable to counsel, not the applicant. Given the criminal nature of the case and the applicant's...
Source-derived case information.
- Citation
- [2021] KEHC 9476 (KLR)
- Parties
- Applicant: Samson Omamo Kodande; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E025 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Review Order Striking Out Appeal
- Outcome
- application allowed; previous order striking out appeal set aside; appeal reinstated
- Legal Topics
- Appeal Out of Time, Review of Court Orders, Right of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samson Omamo Kodande
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Review Order Striking Out Appeal
Legal Issues
- 1 Whether the court should review and set aside its previous order striking out the appeal for being filed out of time.
- 2 Whether the applicant is entitled to reinstatement of the appeal despite procedural errors by counsel.
Ratio Decidendi
The court found that although there was no error in its previous order striking out the appeal for being filed out of time without leave, the failure to annex or cite the order granting leave was a procedural lapse attributable to counsel, not the applicant. Given the criminal nature of the case and the applicant's right of appeal, the court exercised its discretion to review and set aside the order striking out the appeal. The appeal was reinstated to allow the applicant to ventilate his grievance, and the applicant was directed to extract and file the ruling/order in the relevant appeal file and serve the Office of Director of Public Prosecutions. The court emphasized the importance of...
Court Disposition
application allowed; previous order striking out appeal set aside; appeal reinstated
Orders
- The order of 2.7.2019 striking out Criminal Appeal No. 18 of 2019 is set aside.
- Criminal Appeal No. 18 of 2019 is reinstated for hearing interpartes.
Full Case Text
Judgment text and source record
16 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
MISCELLEANOUS CRIMINAL APPLICATION NO. E025 OF 2021
SAMSON OMAMO KODANDE.......................APPLICANT
VERSUS
REPUBLIC......................................................RESPONDENT
RULING
1. I have considered the application dated 18. 1.2021 under Certificate of Urgency. I am satisfied that the application is urgent. I certify it as urgent.
2. On review of the Order of this court made on 2. 7.2019 striking out the appeal for being filed out of time without leave of the court, I have perused the annextures to the supporting affidavit sworn by Perez Odero Advocate. I observe that Counsel filed the appeal within the time granted in the order for leave made on 5. 3.2019 vide High Court Criminal Miscellaneous Application No. 8 of 2019 but when filing the said Appeal vide Petition of appeal dated 14. 3.2019, she did not annex or even cite the order granting leave to appeal out of time.
3. Accordingly, there is no error on the part of this court when it struck out the appeal. Furthermore, the application herein has been brought with inordinate delay. However, Justice can still be done to the applicant/appellant as it is counsel that delayed to move the court and failed to annex or cite the order for leave to appeal out of time. This being a criminal case, and in order to accord the appellant the opportunity to ventilate his grievance in the exercise of his right of appeal, I exercise discretion and review the order of 2. 7.2019 striking out the Criminal Appeal No. 18 of 2019 for being incompetent.
4. I set aside that order striking out the appeal and reinstate the said appeal for hearing interpartes. The applicant herein to extract this Ruling/Order and file in Court in HCRA No. 18 of 2019 and the Office of Director of Public Prosecutions and move the Court expeditiously.
5. This file is closed.
6. Orders accordingly.
Dated, Signed and Delivered at Siaya this 19th day of January, 2021
R.E.ABURILI
JUDGE