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Court of AppealAllowedNotice of motion dated 10th December 2024 (Criminal Appeal)

Cheruiyot v Republic (Criminal Application E244 of 2024) [2025] KECA 829 (KLR)

Court of Appeal of Kenya
9 May 2025
WKW. KORIR
470 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 let a prisoner appeal 20 months late because his custody and delayed court records made the delay reasonable.

What this practically means

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Executive summary

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This is a single-judge (rule 4) decision of the Court of Appeal at Nakuru delivered by W. Korir, JA, on 9th May 2025. The applicant, Wesley Kipkemoi Cheruiyot, was convicted of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act and sentenced to 25 years imprisonment. His appeal to the High Court was dismissed on 24th April 2023. By notice of motion dated 10th December 2024, he sought leave to appeal out of time, explaining that he could not obtain the proceedings and a copy of the judgment in time, and lodging a notice of appeal and a six-ground memorandum of appeal with the application. The respondent, through the Senior Assistant Director of Public Prosecutions, did not oppose the enlargement of time despite describing the delay as inordinate, citing the lengthy jail term. The court applied the settled rule 4 principles, including that there is no definitive maximum or minimum period of delay and that a satisfactory explanation unlocks the doors shut by lapse of time. Holding that the applicant's custody and his explanation that proceedings were not supplied in time rendered the 1 year and 8 months delay not inordinate, the judge allowed the application, deemed the notice of appeal properly filed, and directed that consequential actions follow the Court of Appeal Rules, 2022. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave to file an appeal out of time against the dismissal of his appeal by the High Court
  2. 2.Whether the delay of 1 year and 8 months was inordinate and sufficiently explained

Key legal issues

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01

Exercise of discretion under rule 4 of the Court of Appeal Rules to extend time

Holding

The delay of 1 year and 8 months was not inordinate given the applicant's explanation that proceedings were not supplied in time and his custody status; extension granted.

Reasoning

The court applied settled rule 4 principles: the whole period of delay must be declared and explained, and although there is no definitive maximum or minimum delay, a satisfactory explanation unlocks the doors shut by lapse of time. The applicant, a custodial sentence-holder, explained he was not supplied with proceedings in time; his custody and the explanation rendered the 1 year 8 month delay reasonable, warranting extension.

p. 2

Legal principles established

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  • An applicant for extension of time must declare and sufficiently explain the whole period of delay; there is no definitive maximum or minimum period of delay, and a satisfactory explanation will unlock the doors shut by lapse of time.
  • A period of delay is not automatically inordinate; the fact that an applicant was in custody ought to count for something while considering the reasonableness of the delay.

Court orders

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  1. 1.The notice of motion dated 10th December 2024 is allowed
  2. 2.The applicant's notice of appeal dated 10th December 2024, lodged together with the application, is deemed as properly filed
  3. 3.All actions consequent to the filing of a notice of appeal shall be in accordance with the Court of Appeal Rules, 2022

The bench

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One judgment of the whole court — no separate or dissenting opinions.

WK
majority

Wrote the judgment

On appeal from
High Court
null
Jurisdiction invoked
rule 4 of the Court of Appeal Rules (extension of time discretion)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

even though there is no definitive maximum or minimum period of delay, a satisfactory explanation will unlock the doors shut by lapse of time
p. 2Extension of time principles
The fact that the applicant was in custody ought to count for something while considering the reasonableness of the delay.
p. 2Custody as relevant to reasonableness of delay
Consequently, the notice of motion is hereby allowed. The applicant’s notice of appeal, dated 10th December 2024, lodged together with this application, is deemed as properly filed.
p. 2Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Cheruiyot v Republic (Criminal Application E244 of 2024) [2025] KECA 829 (KLR)", Case Analysis (2025). Notice of motion dated 10th December 2024 (Criminal Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/829/eng@2025-05-09

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