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Court of AppealAllowedNot stated in the judgment· [2024] KECA 1821 (KLR)

IW v Republic (Criminal Application E024 of 2024) [2024] KECA 1821 (KLR)

Court of Appeal of Kenya
20 December 2024
ASAsike-Makhandia
666 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a life convict 45 more days to appeal, ruling that prison delays and a missing reply affidavit justified excusing a two-year lapse.

What this practically means

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Executive summary

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This is a single-Judge application ruling of the Court of Appeal at Kisumu, delivered by Asike-Makhandia, JA, on 20th December 2024. The applicant, IW, was convicted of incest under section 20(1) of the Sexual Offences Act and sentenced to life imprisonment by the Senior Principal Magistrate's Court. His first appeal to the High Court at Bungoma, whose judgment was delivered on 20th November 2021, was dismissed entirely. He then sought leave, as a pauper, to appeal out of time to the Court of Appeal, explaining that he had not been supplied with the trial court's proceedings and judgment. The respondent filed no replying affidavit, opposing only through written submissions of counsel arguing that the delay was inordinate and unexplained. The court first held that submissions cannot replace pleadings, so in the absence of a replying affidavit the applicant's factual assertions stood unopposed. Applying the Supreme Court's Salat principles on extension of time, and noting the applicant's constitutional right under Article 50(q) and section 347 of the Criminal Procedure Code to exhaust the appellate process, the Judge found that although the delay was inordinate, it was excusable given the applicant's custodial circumstances and the difficulty of obtaining proceedings from prison. The application was allowed: the applicant was granted 45 days from the date of the ruling to file and serve the Notice of Appeal and the record of appeal, failing which the leave would automatically lapse. No costs order was made. The High Court's dismissal of the first appeal was not disturbed; this ruling concerns only the extension of time.

Key legal issues

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01

Whether inordinate delay can be excused where the applicant was not supplied with trial proceedings and judgment and is serving a life sentence

Holding

Yes. Though the delay was inordinate, it was excusable given the applicant's custodial circumstances; obtaining the proceedings was inadvertent and beyond his control, and he has a constitutional and statutory right to exhaust the appellate process.

Reasoning

The court weighed the length of the delay against its cause. The applicant, a life convict, faced practical impediments in communicating with the outside world and in obtaining the trial record. Relying on the Salat principles, the court found he had laid a basis that he was not at fault. His undoubted right of appeal under Article 50(q) of the Constitution and section 347 of the Criminal Procedure Code tipped the discretion in his favour, subject to a fixed 45-day window after which the leave lapses.

p. 2
02

The evidentiary status of written submissions filed without a replying affidavit

Holding

Submissions cannot take the place of pleadings; without a replying affidavit, the applicant's uncontroverted facts stand unopposed.

Reasoning

The respondent filed no replying affidavit but opposed through written submissions of counsel. The court held that cases are determined on pleadings, evidence, and applicable law; submissions merely bolster, and cannot prove, a case. Accordingly, the absence of a replying affidavit meant the factual basis asserted by the applicant was unopposed. This principle, drawn from the Daniel Toroitich Arap Moi case, is a procedural rule of general application.

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Legal principles established

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  • Submissions cannot take the place of pleadings; cases are determined on the pleadings, the evidence adduced, and the applicable law. Submissions only bolster a case and cannot prove it.
  • Extension of time is an equitable, discretionary remedy, not a right of a litigant; the litigant must lay a basis that they were not at fault for the lapse of time.
  • Where no replying affidavit is filed in opposition to an application, the unchallenged facts deposed to by the applicant are taken as unopposed, notwithstanding written submissions.

Court orders

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  1. 1.The application dated 17th April 2024 seeking extension of time is allowed
  2. 2.The applicant is granted forty-five (45) days from the date of the ruling to file and serve the Notice of Appeal as well as the record of appeal
  3. 3.If the applicant fails to file within the 45 days, the leave granted shall automatically lapse
On appeal from
High Court of Kenya at Bungoma
Jurisdiction invoked
Inherent jurisdiction of a single Judge of Appeal under the Rules of this Court to extend time for filing an appeal (referred to as 'Extension of time being a creature of equity' per the Rules of this Court); applicant also invoked Article 50(q) of the Constitution of Kenya and section 347 of the Criminal Procedure Code

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, "IW v Republic (Criminal Application E024 of 2024) [2024] KECA 1821 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1821/eng@2024-12-20

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