Atieno v Republic [1985] KECA 12 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed there is no second chance to challenge the High Court's refusal to allow a late criminal appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether an appeal lies against the High Court's refusal of leave to file an appeal out of time
No appeal lies; the refusal is final under section 361(8)(b) of the Criminal Procedure Code.
The applicant's appeal was not filed within the prescribed period under section 349 of the Criminal Procedure Code. His application for leave to appeal out of time was refused by the High Court. Section 361(8)(b) provides that such a refusal is final, ousting any further appeal to the Court of Appeal. The Court could not contravene the statutory bar, however deserving the applicant's plight might appear.
Whether the applicant could blame his advocate for the failure to file the appeal in time
No; the applicant is bound by the acts of his advocate as his agent, and cannot blame counsel for the late filing.
The applicant, while in jail, gave instructions through his mother to a different advocate from the one who handled the trial. That advocate failed to file the appeal within the statutory period. Applying agency principles, the court held that a principal is bound by the acts of agents with authority to act, so the advocate's omission bound the applicant and afforded no basis for reinstatement.
Legal principles established
#- No appeal lies to the Court of Appeal against a refusal by the High Court of leave to file an appeal out of time, the refusal being final under section 361(8)(b) of the Criminal Procedure Code.
- A litigant is bound by the acts of his advocate, who acts as his agent with authority to act; negligence or failure by the advocate cannot be visited on the opposing party or excused by the court.
Court orders
#- 1.The application for leave to reinstate an application for leave to appeal out of time was dismissed
- On appeal from
- High Court at Kakamega
- Criminal Appeal No 78 of 1984
- Jurisdiction invoked
- Section 361(8)(b) of the Criminal Procedure Code (cap 75) - no appeal lies against a refusal by the High Court of leave to file an appeal out of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atieno v Republic [1985] KECA 12 (KLR)", Case Analysis (1985). Criminal Application No NAI 5 of 1985 (KMU 2/85). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/12/eng@1985-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.