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Court of AppealAllowedCRA No. 51 of 2015 (as referenced); application dated 17th October 2024· [2025] KECA 391 (KLR)

Hatiba v Republic (Criminal Application E249 of 2024) [2025] KECA 391 (KLR)

Court of Appeal of Kenya

27 February 2025

JMJ. Mativo

646 words in judgment

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The bottom line

Kenya's Court of Appeal allowed a life-sentence prisoner to appeal six years late, showing courts prioritise justice over strict deadlines when prosecutors agree.

What this practically means

Executive summary

This is a single-judge ruling of the Court of Appeal at Nakuru, delivered by Mativo, JA, on 27th February 2025, on an application dated 17th October 2024 seeking leave to appeal out of time under Rule 4 of the Court of Appeal Rules. The applicant, Handauka Ali Hatiba, was convicted of defilement in Naivasha Chief Magistrate's Criminal Case No. 2912 of 2013 and sentenced to life imprisonment. His first appeal to the High Court in CRA No. 51 of 2015 was dismissed on 26th June 2018, but he failed to lodge a notice of appeal to the Court of Appeal within the statutory 14 days, resulting in a delay of approximately six years and three months. The only explanation offered was a prior intention to appeal. The respondent, through Senior Assistant Director of Public Prosecutions Mr. A. J. Omutelema, conceded to the application, citing the length of the life sentence. The court applied the Supreme Court's principles in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet, that delay must be satisfactorily explained and that a plausible explanation unlocks the court's discretionary favour, and Bowen LJ's dictum in Gardner v Jay that such discretion must be exercised according to common sense and justice on a case-by-case basis, without inflexible rules. Balancing the unexplained delay against the prosecution's concession and the applicant's right to his day in court, the judge allowed the application and directed that the notice of appeal be filed within 14 days and the record of appeal within 60 days. The decision below was not disturbed at this stage; the ruling grants leave to pursue the appeal.

Key legal issues

Extension of time under Rule 4 of the Court of Appeal Rules

Holding

The discretion to enlarge time is unfettered by inflexible rules, must be exercised judicially on a case-by-case basis, and while the applicant offered no explanation for the six-year delay beyond an intention to appeal, the prosecution's concession and the life sentence imposed justified granting leave in the applicant's favour

Reasoning

The court applied the Supreme Court's guidance in Chemaringo that delay must be satisfactorily explained, and Bowen LJ's dictum that judicial discretion must be exercised according to common sense and justice. Despite the unexplained six-year delay, the court weighed the concession by the Director of Public Prosecutions grounded on the life imprisonment sentence, and the need to afford the applicant his day in court, and exercised its discretion to allow the application with specified timelines.

p. 2

Legal principles established

Delay in filing an appeal must be satisfactorily explained; a plausible and satisfactory explanation is the key to the exercise of the discretion to extend time, and the discretion must be exercised on a case-by-case basis according to common sense and justice

Court orders

1.The application dated 17th October 2024 is allowed
2.The applicant shall file his notice of appeal within 14 days from the date of the ruling
3.The applicant shall thereafter file his record of appeal within 60 days

Authorities

Legislation

Sexual Offences Act No. 3 of 2006Section 8(1) as read with Section 8(2)
Court of Appeal RulesRule 4

Cases cited (2)

Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet
[2018] eKLR
Gardner vs. Jay
[1885] 29 CH D 50

On appeal from: High Court; CRA No. 51 of 2015
Jurisdiction invoked: Rule 4 of the Court of Appeal Rules (extension of time to file notice of appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Hatiba v Republic (Criminal Application E249 of 2024) [2025] KECA 391 (KLR)", Case Analysis (2025). CRA No. 51 of 2015 (as referenced); application dated 17th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/391/eng@2025-02-27

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