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Court of AppealAllowedNot stated in the judgment (application dated 30th July 2024)· [2024] KECA 1344 (KLR)

Adala v Republic (Criminal Application E130 of 2024) [2024] KECA 1344 (KLR)

Court of Appeal of Kenya

2 October 2024

ASAsike-Makhandia

586 words in judgment

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The bottom line

Kenya's Court of Appeal let an unrepresented prisoner appeal his murder conviction years late, showing courts prioritise access to justice over missed deadlines.

What this practically means

Executive summary

This is a single-judge decision of the Court of Appeal at Kisumu (Asike-Makhandia, JA) on an application dated 30th July 2024 for leave to file an appeal out of time. The applicant, together with Frederick Omondi Onyango, had been tried, convicted and sentenced to 25 years imprisonment for murder contrary to section 103 as read with section 104 of the Penal Code by the High Court of Kenya at Siaya (Aburili, J) in a judgment delivered on 16th November 2021. Under the Court's rules, appeals must be filed within 14 days of the judgment. The applicant, who described himself as a pauper and was acting in person, had not filed his appeal and sought leave to do so out of time, contending the intended appeal had high chances of success. The respondent opposed through written submissions only, arguing the delay was unexplained and no draft memorandum of appeal was annexed. The court held that submissions cannot take the place of pleadings, so the respondent could not oppose the application without a replying affidavit. Although the delay was unexplained and arguability was not demonstrated, the judge allowed the application, citing the applicant's unrepresented status, his inalienable right to exhaust the appellate process, the long sentence he faces, the constitutional command against technicalities, and the absence of prejudice to the respondent. The application was allowed in its entirety.

Key legal issues

Whether unexplained delay and failure to demonstrate arguability should defeat an extension-of-time application by an unrepresented, indigent applicant

Holding

The court exercised its discretion in favour of the in-person applicant, prioritising the right to exhaust the appellate process and the command against technicalities over the unexplained delay

Reasoning

The judge acknowledged that the applicant neither explained the delay nor demonstrated the intended appeal was arguable. However, acting in person and unaware of the intricacies of the law, the applicant deserved due allowance. He has an inalienable right to exhaust the appellate process, faces a long term of incarceration which may be interfered with on appeal, and no prejudice to the respondent was demonstrated. Technicalities should not stand in the way as the Constitution commands.

p. 2

Legal principles established

Written submissions cannot take the place of pleadings; a respondent who fails to file a replying affidavit cannot oppose an application merely on written submissions

Court orders

1.The application dated 30th July 2024 allowed in its entirety, granting the applicant leave to file his intended appeal out of time

Authorities

Legislation

Penal Codesection 103 as read with section 104
Constitution of KenyaNot specified (referred to generally as the command against technicalities)

On appeal from: High Court of Kenya at Siaya; Not stated in the judgment
Jurisdiction invoked: Leave to file appeal out of time under the rules of this court (the Court of Appeal rules requiring appeals to be filed within 14 days of the judgment or ruling)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Adala v Republic (Criminal Application E130 of 2024) [2024] KECA 1344 (KLR)", Case Analysis (2024). Not stated in the judgment (application dated 30th July 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1344/eng@2024-10-02

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