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Court of AppealDismissedCriminal Application E129 of 2024· [2024] KECA 1885 (KLR)

Kinyatti v Republic

Court of Appeal
5 December 2024
JLJW Lessit
918 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a convict's late appeal because a nearly seven-year delay, blamed only on lack of money, was not a good enough excuse.

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 Nyeri (Lessit, JA) on an application under Rule 40 of the Court of Appeal Rules, 2010, seeking leave to appeal out of time. The applicant, serving a life sentence imposed by the Chief Magistrate's Court at Nanyuki under sections 8(1) and 8(2) of the Sexual Offences Act, had his first appeal dismissed by the High Court (Kasango, J.) in November 2017, and a subsequent application for leave to appeal to the Court of Appeal dismissed by Ndungu, J. on 8th November 2023. He attributed his failure to appeal within time to his family's inability to raise legal fees. The application was unopposed by the State. Applying the principles in Imperial Bank Ltd v Alnasir Popat and the Supreme Court's decision in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet, the court held that the delay of six years and ten months was inordinate and that the funding explanation was not reasonable or plausible, particularly absent any explanation of what prompted the application at that stage; it appeared to be an afterthought following the dismissal of his High Court leave application. The application was dismissed. No costs order was made. The decision below (the High Court ruling) was not disturbed; the application simply failed.

Key legal issues

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01

Whether the six-year-and-ten-month delay in seeking leave to appeal out of time was excusable

Holding

The delay was inordinate and unexplained; the applicant's claim that his family could not raise legal fees was not a reasonable or plausible explanation, and the application was an afterthought following dismissal of his High Court leave application.

Reasoning

Applying the Imperial Bank and Chemaringo principles, the single judge weighed the length of delay, the reasons given, and the absence of any explanation for what prompted the application. Sitting on the right of appeal for almost seven years, with only a bare funding complaint, failed to unlock discretionary favour; the application was unmerited and dismissed.

p. 2

Legal principles established

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  • An applicant for extension of time must give a reasonable and plausible explanation for the delay; lack of funds alone, without explanation of what triggered the late application, does not unlock the court's discretionary favour.

Court orders

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  1. 1.The applicant's undated application for leave to appeal out of time is dismissed

Authorities

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Legislation

  • Court of Appeal RulesRule 40
  • Sexual Offences ActSections 8(1) and 8(2)

Cases cited (2)

  • Imperial Bank Ltd (in receivership) and Another v Alnasir Popat and 18 Others
    [2018] eKLR

    Considerations for extension of time: length of and reasons for delay, prejudice, conduct of parties, public interest, arguability.

  • Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet
    [2018] eKLR

    No minimum or maximum period of delay; delay must be satisfactorily explained to unlock discretionary favour.

On appeal from
High Court
HCC Misc. Application no. E014 of 2023
Jurisdiction invoked
Rule 40 of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kinyatti v Republic", Case Analysis (2024). Criminal Application E129 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1885/eng@2024-12-05

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