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Court of AppealAllowedNot stated in the judgment (application under Rule 4 of the Court of Appeal Rules, 2022; appeal against judgment in High Court Criminal Appeal No. E025 of 2022)· [2024] KECA 382 (KLR)

Kassim Otieno Mayero v Republic

Court of Appeal of Kenya
28 March 2024
PKP. O. Kiage
363 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 granted a prisoner more time to appeal because his prison transfers explained the delay and prosecutors did not object.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by Kiage, JA on 28th March 2024, on an application under Rule 4 of the Court of Appeal Rules, 2022 for extension or enlargement of time to file an appeal. The applicant sought to challenge the judgment of Kimondo, J. in High Court Criminal Appeal No. E025 of 2022, by which the learned judge upheld the applicant's conviction by the Chief Magistrate's Court on a charge of defilement, while reducing the sentence from 20 to 10 years' imprisonment. The applicant explained that after the delivery of judgment he was moved from Kamiti Maximum to Kamiti Medium and then to Ruiru General Prisons, which prevented him from conveying instructions to his family and advocates that he intended to file an appeal, and time ran out. He urged that the delay was not inordinate. The Director of Public Prosecutions, through a letter dated 23rd October 2023 signed by Margaret Matiru, Senior Assistant Director of Public Prosecutions, expressly confirmed non-opposition and stated that granting the motion would not prejudice the respondent. The court found the delay neither inordinate nor excessive, explained to its satisfaction, and unopposed. The application was granted: time for lodging the motion of appeal was extended and the notice of appeal was deemed properly filed and served. No costs order was made. This is an interlocutory procedural ruling on extension of time; the merits of the contemplated appeal remain for determination in the substantive appeal.

Key legal issues

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01

Extension of time to lodge an appeal under Rule 4 of the Court of Appeal Rules, 2022

Holding

The applicant's delay was neither inordinate nor excessive, was satisfactorily explained by his transfers between prisons after judgment, and the DPP raised no objection; extension was therefore granted and the notice of appeal deemed properly filed and served.

Reasoning

The applicant attributed the delay to his movement from Kamiti Maximum to Kamiti Medium and then to Ruiru General Prisons after delivery of judgment, which prevented him from conveying instructions to his family and advocates. The delay was found neither inordinate nor excessive and was explained to the judge's satisfaction. The respondent, through a letter by a Senior Assistant Director of Public Prosecutions, expressly stated it was not opposed and that granting the motion would not prejudice the respondent. On those combined factors the discretion under Rule 4 was exercised in the applicant's favour.

p. 2

Legal principles established

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  • Where delay in filing an appeal is neither inordinate nor excessive and is satisfactorily explained, and there is no opposition from the respondent, the Court may grant extension of time under Rule 4

Court orders

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  1. 1.The application for extension of time is granted
  2. 2.Time for lodging the motion of appeal is extended such that the notice of appeal is deemed to be properly filed and served
On appeal from
High Court of Kenya
High Court Criminal Appeal No. E025 of 2022
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (extension/enlargement of time for filing an appeal)

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, "Kassim Otieno Mayero v Republic", Case Analysis (2024). Not stated in the judgment (application under Rule 4 of the Court of Appeal Rules, 2022; appeal against judgment in High Court Criminal Appeal No. E025 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/382/eng@2024-03-28

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