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Court of AppealOtherCriminal Appeal (not fully stated in judgment) - Notice of Motion dated 1st July 2024· [2025] KECA 1612 (KLR)

Marko Mwita Nyakorema v Republic

Court of Appeal of Kenya
3 October 2025
HOH. A. Omondi
300 words in judgment
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The bottom line

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Kenya's Court of Appeal let a prisoner withdraw his extension-of-time application because the High Court had already granted him the same orders, ending the matter.

What this practically means

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Executive summary

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The applicant, Marko Mwita Nyakorema, was convicted of robbery with violence and sentenced to death by the Kehancha magistrate's court. His first appeal against conviction and sentence was dismissed in its entirety by the High Court at Migori (Nagillah, Majanja, JJ.) on 13th February. He did not lodge a second appeal within time, later explaining that relatives had promised to engage an advocate but this failed due to financial constraints. He then filed a Notice of Motion dated 1st July 2024 seeking extension of time within which to file the second appeal, contending that the first appellate court had failed to consider jurisprudential developments on mandatory death sentences. Written submissions were filed and the respondent, through learned prosecution counsel Miss Ikol, responded. Before the application could be determined, the applicant sought to withdraw it by a Notice of withdrawal dated 3rd April 2025, explaining that the very orders sought had already been granted by the High Court (Onginjo, J.) in Migori HCR Misc. Appl. E086 of 2024, rendering the issue spent. The respondent did not oppose the withdrawal, and the court found no prejudice would be occasioned. The single judge (H. A. Omondi, JA) marked the application withdrawn under Rule 70(1) of the Court of Appeal Rules on 3rd October 2025. No determination was made on the merits of the extension of time, and no costs order was recorded.

Key legal issues

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01

Whether an application may be withdrawn before hearing

Holding

Yes; an applicant may withdraw an application, and where the respondent raises no objection and no prejudice is caused, the court will mark the application withdrawn under Rule 70(1) of the Court of Appeal Rules.

Reasoning

The applicant filed a Notice of withdrawal dated 3rd April 2025 explaining that the orders sought in the extension-of-time application had already been granted by the High Court, making the application spent. The respondent did not oppose the withdrawal, and the court found it occasioned no prejudice, so it allowed the withdrawal without adjudicating the merits.

p. 1

Legal principles established

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    Court orders

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    1. 1.The application be and is hereby marked as withdrawn under Rule 70(1) of the Court of Appeal Rules
    On appeal from
    High Court of Kenya at Migori
    null (first appeal dismissed 13th February; Migori HCR Misc. Appl. E086 of 2024 granted equivalent orders)
    Jurisdiction invoked
    Rule 70(1) of the Court of Appeal Rules

    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, "Marko Mwita Nyakorema v Republic", Case Analysis (2025). Criminal Appeal (not fully stated in judgment) - Notice of Motion dated 1st July 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1612/eng@2025-10-03

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