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Court of AppealPartially AllowedCriminal Application (Notice of Motion dated 21st November 2024) arising from High Court Criminal Appeal No. E062 of 2023· [2025] KECA 791 (KLR)

Dunya v Republic (Criminal Application E163 of 2024) [2025] KECA 791 (KLR)

Court of Appeal of Kenya
9 May 2025
HOH. A. Omondi
1,804 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal gave a woman more time to appeal her conviction, but ruled that only a full bench of three judges can grant bail or stay an arrest warrant.

What this practically means

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Executive summary

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By a Notice of Motion dated 21st November 2024, Teresiah Adhiambo Dunya, an unrepresented-by-diligence applicant convicted of assault occasioning actual bodily harm on her 11-year-old step-son, sought enlargement of time to appeal, stay of execution of warrants of arrest, and bail pending appeal against the High Court's reversal of her acquittal and imposition of a three-year imprisonment sentence in Criminal Appeal No. E062 of 2023 delivered on 31st October 2024. Sitting as a single Judge under rule 5(2)(b) of the Court of Appeal Rules, Omondi JA held that stay of execution and bail pending appeal are reserved to a full bench under rule 55, and declined to determine those prayers, leaving the applicant liberty to list them before the full Court. On the extension-of-time prayer, governed by rule 4, the Court applied the Leo Sila Mutiso principles as supplemented in Muringa Company Ltd and Chemaringo. The 21-day delay - only six days beyond the 14-day notice period under rule 61(1) - was held not inordinate: the applicant's former advocate failed to enter appearance, file submissions or inform her of the judgment, and she acted promptly on learning of the warrants when police visited her offices. The respondent filed no response or submissions. The Court granted extension of time to file and serve the notice of appeal within 14 days, and the record of appeal within 30 days of service of the notice. No order as to costs appears in the judgment. The application is thus partially allowed.

Key legal issues

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01

Jurisdiction of a single Judge of the Court of Appeal over omnibus applications

Holding

A single Judge may deal only with extension of time; stay of execution and bail pending appeal fall to the full bench under rule 55

Reasoning

Rule 55(2) of the Court of Appeal Rules excludes applications for stay of execution, injunctions or stay of further proceedings from those heard by a single Judge. The Court therefore declined to decide those prayers but preserved them for the full bench, dealing only with the extension-of-time prayer over which the single Judge has jurisdiction under rule 4.

p. 2
02

Extension of time to file appeal out of time

Holding

Extension granted: a 21-day delay was not inordinate where the applicant promptly moved within six days outside the statutory period and blamed counsel's failure to communicate the judgment

Reasoning

Applying the Leo Sila Mutiso principles (length of delay, reason for delay, chances of success, prejudice), the Court found the 21-day delay explainable: counsel failed to enter appearance or update the applicant, who learned of the judgment and warrants only when police came to arrest her. The delay was only six days beyond the 14-day limit, the applicant was a nursing mother facing incarceration, and the respondent filed no response or submissions.

p. 4

Legal principles established

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  • Applications for stay of execution, injunctions or stay of further proceedings, and bail pending appeal cannot be granted by a single Judge of the Court of Appeal and must be determined by a full bench under rule 55 of the Court of Appeal Rules
  • There is no maximum or minimum period of delay prescribed for extension of time; the delay must be reasonably and plausibly explained

Court orders

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  1. 1.The application is allowed insofar as it seeks extension of time
  2. 2.Extension of time granted to file and serve the notice of appeal out of time within fourteen (14) days
  3. 3.The applicant shall file and serve the respondent with the record of appeal within thirty (30) days upon service of the Notice of Appeal
  4. 4.Applicant at liberty to list the prayers for stay of execution and bail pending appeal before the full bench

Authorities

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Legislation

  • Constitution of Kenya 2010Article 50
  • Constitution of Kenya 2010Article 159(2)(a)
  • Constitution of Kenya 2010Article 164(3)(a)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 55
  • Court of Appeal RulesRule 61(1)
  • Criminal Procedure CodeSection 349
  • Penal CodeSection 251

Cases cited (4)

  • Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet
    [2018] KECA
  • Leo Sila Mutiso vs. Hellen Wangari Mwangi
    [1999] 2 EA 231
  • Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees
    Civil Application No.190 of 2019
  • Omwoyo vs. African Highlands and Produce Co. Ltd
    [2002] 1KLR
On appeal from
High Court
Criminal Appeal No. E062 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and rule 4 of the Court of Appeal Rules (extension of time), sitting as a single Judge

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, "Dunya v Republic (Criminal Application E163 of 2024) [2025] KECA 791 (KLR)", Case Analysis (2025). Criminal Application (Notice of Motion dated 21st November 2024) arising from High Court Criminal Appeal No. E062 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/791/eng@2025-05-09

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