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Court of AppealAllowedCriminal Application No. NAI 4 of 1998

Peter Bunduki v Republic [1999] KECA 57 (KLR)

Court of Appeal
16 March 1999
ZCZ. R. ChesoniROR. S. C. OmoloALA. A. Lakha
374 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that a person whose lawyer failed to file an appeal on time still deserves the chance to be heard.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Kisumu (Chesoni CJ, Omolo and Lakha JJA) on a reference from the dismissal by Kwach JA, sitting as a single Judge, of an application for leave to appeal out of time. The applicant, Peter Bunduki, had been convicted of manslaughter and sentenced to three years' imprisonment by Mbaluto J in the High Court at Kisii in H.C.CR.C. No. 48 of 1996 (judgment dated 20th November 1996). He instructed the firm of M/s Mainye to prosecute an appeal, but the advocates took no action, and he remained under the impression that an appeal had been filed until 24th March 1998, when he attended court for the hearing of his appeal and learned none had been lodged. He applied in person for leave to appeal out of time on 25th March 1998; that application was dismissed by the single Judge. On reference, the full Court held that the intended appeal - alleging that guilt was not proved beyond reasonable doubt and that the trial Judge took into account extraneous matters - was not frivolous, and that the appellant should be heard on his appeal. The Court set aside the single Judge's order, granted leave to file the notice of appeal within fourteen days and the memorandum and record of appeal within a further fourteen days, and alternatively directed that the petition of appeal filed on 26th March 1998 be accepted as filed within the extended time. No costs order was made. The decision binds subordinate courts and single Judges on the court's power on reference to set aside a single Judge's refusal of leave where the intended grounds are arguable and the delay is attributable to the appellant's advocate.

Questions the Court framed

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

  1. 1.Whether the single Judge's dismissal of the application for leave to appeal out of time should be set aside on reference
  2. 2.Whether the intended appeal is based on frivolous or non-frivolous grounds such that the applicant should be granted leave to appeal out of time

Key legal issues

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01

Extension of time to appeal where delay is attributable to the applicant's advocate

Holding

The court set aside the single Judge's dismissal and granted leave, holding that an appellant whose advocate failed to act on instructions should not be denied the opportunity to appeal where the intended grounds are not frivolous.

Reasoning

The applicant was convicted of manslaughter and sentenced to three years' imprisonment. He instructed advocates to prosecute the appeal, but they took no action, leaving him under the impression that an appeal had been filed until 24th March 1998. The court found the intended grounds - that guilt was not proved beyond reasonable doubt and that the trial Judge took into account extraneous matters - were not frivolous, and that justice required the appellant be heard.

p. 2
02

Effect of a single Judge's dismissal of an application for leave to appeal out of time on reference to the full Court

Holding

The full Court on reference has power to set aside the single Judge's order dismissing the application and to grant the leave refused, together with consequential extensions of time for filing the notice of appeal, memorandum and record of appeal.

Reasoning

The application for leave to appeal out of time had been heard and dismissed by Kwach JA sitting as a single Judge. On the appellant's reference, the full Court (Chesoni CJ, Omolo and Lakha JJA) reconsidered the matter, concluded the appellant should be heard on his appeal, set aside the single Judge's order, and granted leave with a fourteen-day timetable, alternatively deeming the petition of appeal filed on 26th March 1998 as filed within extended time.

p. 2

Legal principles established

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  • Where an intended appeal is not based on frivolous grounds, an applicant who through no fault of his own (here, an advocate's inaction) failed to file an appeal in time should be heard on his appeal, and a single Judge's refusal of leave may be set aside on reference.

Court orders

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  1. 1.The single Judge's order dismissing the application for leave to appeal out of time is set aside
  2. 2.Leave granted to the appellant to file the notice of appeal within fourteen (14) days from the date of the order
  3. 3.Leave to file the memorandum of appeal and record of appeal within a further fourteen (14) days thereafter
  4. 4.In the alternative, the petition of appeal filed on 26th March, 1998 to be accepted as filed within the extended time if the appellant does not wish to file a fresh memorandum of appeal

The bench

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

ZC
majority
RO
majority
AL
majority
On appeal from
High Court of Kenya at Kisumu (single Judge, Kwach JA)
Application for leave to appeal out of time, from H.C.CR.C. No. 48 of 1996
Jurisdiction invoked
Reference from the decision of a single Judge of the Court of Appeal on an application for leave to appeal out of time (Court of Appeal jurisdiction over criminal appeals)

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.

The intended appeal is not based on frivolous grounds. We think the appellant should be heard on his appeal.
p. 2entitlement to be heard on a non-frivolous appeal despite delay
Consequently, the single Judge's order dismissing the application is set aside. We grant the appellant leave to file the notice of appeal within fourteen (14) days from the date of this order
p. 2final orders - setting aside single Judge's dismissal and granting leave
If the appellant does not wish to file a fresh memorandum of appeal let the petition of appeal filed on 26th March, 1998 be accepted as filed within the extended time.
p. 2final orders - alternative deeming of petition of appeal

Issues in the judgment

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minor

The judgment is dated and delivered at Kisumu on 16th March 1999, but the record describes the appellant lodging an application on 25th March 1998 and refers to a petition of appeal filed on 26th March 1998; the chronology is internally consistent but the application number (NAI 4 of 1998) predates delivery by nearly a year, which is normal for extension applications and not a contradiction.

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, "Peter Bunduki v Republic [1999] KECA 57 (KLR)", Case Analysis (1999). Criminal Application No. NAI 4 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/57/eng@1999-03-16

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