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Court of AppealOtherNot stated in the judgment (Criminal Application for extension of time arising from Nakuru High Court Criminal Case No 60 of 2012)· [2024] KECA 1264 (KLR)

Kanyake alias Viathe v Republic (Criminal Application E040 of 2024) [2024] KECA 1264 (KLR)

Court of Appeal of Kenya
20 September 2024
SKS. ole Kantai
326 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal let a prisoner's murder appeal proceed by giving him 14 more days to file, after the State conceded his appeal was already lodged on time.

What this practically means

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Executive summary

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This is a short single-judge ruling (S. ole Kantai, JA) delivered at Nairobi on 20 September 2024 in an application by Hezekiah Njoroge Kanyake alias Viathe, a prisoner convicted of murder and sentenced to 30 years imprisonment by Odero, J. of the High Court at Nakuru on 23 March 2018 in Criminal Case No 60 of 2012. The applicant sought certification as urgent and leave to appeal out of time, explaining that his relatives had promised to fund an appeal after conviction but failed to do so because of the legal fees demanded, and asserting that his appeal raised candid points of law and facts with overwhelming chances of success. He attached a homemade memorandum of appeal with two grounds and an undated Notice of Appeal endorsed by the Officer-in-Charge, Nakuru Main Prison. The respondent filed written submissions explaining the effect of rule 69 of the Court of Appeal Rules, 2022 on the procedure where an appellant is in prison, and submitted that the appeal had in fact been filed on time, making an application for leave to appeal out of time unnecessary. The judge adopted a pragmatic course: since nothing would be lost if the respondent's position was correct, the applicant was directed to lodge his Notice of Appeal, if not already done on time, within fourteen days. No costs order was made and no authorities were cited.

Key legal issues

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Whether leave to appeal out of time was required where the appeal may already have been filed on time

Holding

The court treated the application as unnecessary on the respondent's own position and gave the applicant 14 days to lodge the Notice of Appeal, taking a pragmatic, no-prejudice approach

Reasoning

The respondent explained the effect of rule 69 of the Court of Appeal Rules, 2022 on the procedure where an appellant is in prison, submitting that the appeal was filed on time. The judge reasoned that if the respondent's position were correct, nothing would be lost; and even if the notice had not been filed on time, a 14-day grace period would cure any default without the need for a contested ruling.

p. 2

Legal principles established

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  • Where the respondent concedes that a prisoner's appeal was filed on time under rule 69 of the Court of Appeal Rules, 2022, an application for leave to appeal out of time becomes unnecessary and the court may simply direct lodgement of the Notice of Appeal within a set period

Court orders

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  1. 1.The applicant to lodge Notice of Appeal, if he had not done so on time, within fourteen (14) days of the ruling
  2. 2.Implicitly, leave to appeal out of time was unnecessary on the respondent's own position that the appeal was filed on time

Authorities

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Legislation

  • Court of Appeal Rulesrule 69
On appeal from
High Court of Kenya at Nakuru
Criminal Case No 60 of 2012
Jurisdiction invoked
Inherent procedural jurisdiction under the Court of Appeal Rules, 2022 (rule 69 referenced) to grant leave to appeal out of time

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, "Kanyake alias Viathe v Republic (Criminal Application E040 of 2024) [2024] KECA 1264 (KLR)", Case Analysis (2024). Not stated in the judgment (Criminal Application for extension of time arising from Nakuru High Court Criminal Case No 60 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1264/eng@2024-09-20

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