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Court of AppealDismissedCriminal Application (extension of time) dated 28th May 2024, arising from HCCRA No. 188 of 2016· [2024] KECA 997 (KLR)

Hillary Waweru v Republic

Court of Appeal
26 July 2024
Mohamed Abdulahi WarsameM. Warsame
399 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to excuse a four-year delay in filing an appeal, confirming that unexplained inordinate delay can permanently end your right to appeal.

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 M. Warsame, JA on 26th July 2024, in which Hillary Waweru sought leave to file a notice of appeal out of time against a High Court judgment of 18th March 2020 (HCCRA No. 188 of 2016) dismissing his appeal against conviction and a 20-year sentence for attempted defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act. The applicant attributed the delay to the High Court's failure to furnish him with the original proceedings and a copy of the judgment, and to his incarceration, and asserted that the respondent was not opposed and would suffer no prejudice. The court applied the settled criteria from Leo Sila Mutiso v Helen Wangari: the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent. Finding that the notice and memorandum of appeal were only filed on 28th May 2024 - nearly 4 years and 2 months after the judgment - the court held the delay inordinate and the explanation that the court caused it unsubstantiated, observing that there was no indication the applicant had intended to appeal and that the appeal was an afterthought. The application was dismissed with no order as to costs. The decision does not disturb the High Court judgment; it simply denies the applicant the opportunity to pursue a second appeal.

Key legal issues

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01

Whether the delay of about 4 years and 2 months was inordinate and excusable

Holding

The delay was inordinate and unexplained; the blame placed on the court's failure to furnish proceedings was unsubstantiated and there was no indication of an intention to appeal until the application was filed.

Reasoning

The High Court delivered judgment on 18th March 2020 and any appeal should have been lodged in early April 2020. The applicant filed both the notice and memorandum of appeal on 28th May 2024, a lapse of almost 4 years and 2 months. Although he blamed the court for not furnishing proceedings and the judgment, no substantiation was offered. The respondent's non-opposition did not outweigh the inordinate, unexplained delay.

p. 2

Legal principles established

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  • In an extension-of-time application the court considers: the length of the delay; the reason for the delay; the chances of the appeal succeeding; and the degree of prejudice to the respondent.

Court orders

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  1. 1.The application for extension of time to file a notice of appeal out of time is dismissed
  2. 2.No order as to costs
On appeal from
High Court
HCCRA No. 188 of 2016
Jurisdiction invoked
Inherent discretion of the Court of Appeal to extend time for filing a notice of appeal (appellate Rules practice; no specific provision quoted in the judgment)

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, "Hillary Waweru v Republic", Case Analysis (2024). Criminal Application (extension of time) dated 28th May 2024, arising from HCCRA No. 188 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/997/eng@2024-07-26

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