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Court of AppealAllowedCriminal Application No. Nai. 5 of 1998

NICHOLAS KIOKO vs REPUBLIC [1998] KECA 204 (KLR)

Court of Appeal
4 November 1998
JGJ. E. GicheruPhilip Kiptoo TunoiP. K. TunoiGPG. S. Pall
239 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that no one's application to appeal late can be dismissed without first being given a chance to be heard.

What this practically means

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Executive summary

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This is a short ruling of a full bench of the Court of Appeal at Nairobi (Gicheru, Tunoi and Pall, JJ.A.) on an application by Nicholas Kioko complaining of the manner in which a single judge of the Court of Appeal dealt with his application for leave to file an appeal out of time against a judgment of the High Court at Kisii (Mbaluto, J.) dated 20 November 1996 in H.C.CR. No. 48 of 1996. The applicant's complaint was that the single judge dismissed the application without giving him an opportunity to be heard on it. Notably, learned State Counsel appearing before the full court confirmed the complaint, stating that she too had said no more than a sentence regarding the applicant's delay in preferring the intended appeal. The full court, while expressing reluctance to fault the judge, held that the record confirmed the applicant's averment that he was not accorded an opportunity to canvass his application. The court therefore set aside the single judge's order of dismissal and granted the applicant leave to file his appeal out of time, requiring him to do so within 14 days of the ruling. The ruling is significant for the principle that an applicant for extension of time is entitled to an opportunity to be heard before the application is dismissed. No costs order was made and no authorities were cited.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the single judge of the Court of Appeal denied the applicant an opportunity to be heard on his application for leave to file an appeal out of time
  2. 2.Whether the order dismissing the application should be set aside and leave to appeal out of time granted

Key legal issues

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01

Whether the single judge denied the applicant a fair hearing on his extension-of-time application

Holding

Yes; the court faulted the single judge for dismissing the application without giving the applicant (or even State Counsel) an opportunity to address the question of delay.

Reasoning

The applicant complained that the learned single judge did not grant him an opportunity to pursue his application for leave to appeal out of time. State Counsel confirmed that she too said no more than a sentence about the delay. Although the court was reluctant to criticise the judge, the record confirmed the applicant's averment that he was not heard, warranting setting aside the dismissal.

p. 2

Legal principles established

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  • An applicant for leave to file an appeal out of time must be accorded an opportunity to canvass his application before it is dismissed.

Court orders

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  1. 1.The order of the learned single judge dismissing the application is set aside
  2. 2.Leave is granted to the applicant to file his appeal out of time
  3. 3.The appeal must be filed within 14 days of the ruling

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority
Philip Kiptoo Tunoi
majority
GP
majority
On appeal from
High Court of Kenya at Kisii
H.C.CR. No. 48 of 1996
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal to review a decision of a single judge on an application for leave to appeal out of time (not expressly stated in the ruling)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

With great respect to the learned single Judge of this Court we will set aside his order of dismissal. We will grant leave to the applicant to file his appeal out of time. This he must do within 14 days hereof.
p. 2Final orders - dismissal set aside and leave to appeal out of time granted
the record of the proceedings confirms the averment by the applicant that he was not accorded opportunity to canvass his application.
p. 2Right to be heard on an extension-of-time application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "NICHOLAS KIOKO vs REPUBLIC [1998] KECA 204 (KLR)", Case Analysis (1998). Criminal Application No. Nai. 5 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/204/eng@1998-11-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.