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Court of AppealAllowedCriminal Appeal No. 9 of 2013 (application for extension of time)

Musa Okoth Saka v Republic [2018] KECA 240 (KLR)

Court of Appeal of Kenya
22 October 2018
EGE. M. Githinji
225 words in judgment
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The bottom line

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A Kenyan prisoner who did everything right got a second chance to appeal because he handed his notice of appeal to prison authorities who lost it.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Kisumu by Githinji, JA, delivered on 22nd October 2018, on an application for extension of time within which to file a notice of appeal against the judgment of the High Court in Criminal Appeal No. 9 of 2013 delivered on 22nd November 2013. The applicant, a prisoner, explained through the affidavit of his counsel that he had prepared the notice of appeal in time and handed it to the prison authorities for onward transmission to the Court of Appeal Registry, but an inquiry by counsel established that the notice was never received by the Registry. The respondent, through learned prosecutions counsel Mr Sirtuy, filed no replying affidavit and indicated that it had no objection to the application. The court held that because the facts supporting the application were not controverted, and in the interest of justice, the discretion ought to be exercised in the applicant's favour. The application was allowed: time for filing the notice of appeal was extended, and the notice of appeal was to be filed within seven days of the ruling. No costs order was made, and no authorities were cited. The decision does not disturb the High Court judgment, which remains subject to the intended appeal.

Questions the Court framed

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

  1. 1.Whether the applicant should be granted an extension of time within which to file a notice of appeal against the High Court judgment of 22nd November 2013

Key legal issues

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01

Whether the delay in filing the notice of appeal was excusable and whether time should be extended

Holding

The application was allowed. The applicant had prepared a notice of appeal in time and handed it to prison authorities for onward transmission to the Court of Appeal Registry, but it was never received; the prosecution raised no objection and filed no replying affidavit, so the facts stood uncontroverted.

Reasoning

The court accepted the unsworn-controverted account that the applicant, a prisoner, had done all that was required of him by handing the notice to the prison authorities. Counsel's inquiry at the Registry confirmed non-receipt. With no replying affidavit and no objection from prosecutions counsel, there was nothing to displace the explanation, and the interest of justice favoured extending time.

p. 2

Legal principles established

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  • Where an applicant's supporting facts are uncontroverted because no replying affidavit is filed, and the delay is satisfactorily explained, the court may exercise its discretion in favour of extending time in the interest of justice.

Court orders

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  1. 1.Time for filing notice of appeal is extended
  2. 2.The notice of appeal to be filed within seven (7) days from the date of the order

The bench

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

EG
majority

Wrote the judgment

On appeal from
High Court
Criminal Appeal No. 9 of 2013
Jurisdiction invoked
Inherent discretion to extend time for filing notice of appeal (appellate jurisdiction under the Court's rules)

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.

In the circumstances and in the interest of justice, I would exercise my discretion in favour of the applicant and extend time as prayed.
p. 2Exercise of discretion to extend time
Accordingly, the application is allowed. Time for filing notice of appeal is extended. The notice of appeal to be filed within seven (7) days from the date hereof.
p. 2Final orders
As the respondent did not file a replying affidavit the facts supporting the application are not controverted.
p. 2Effect of uncontroverted affidavit evidence

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, "Musa Okoth Saka v Republic [2018] KECA 240 (KLR)", Case Analysis (2018). Criminal Appeal No. 9 of 2013 (application for extension of time). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/240/eng@2018-10-22

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