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Court of AppealDismissedNotice of motion dated 10th December 2024 (Criminal Application)· [2025] KECA 1175 (KLR)

Andrew Simiyu Makokha v Republic

Court of Appeal of Kenya
9 May 2025
WKW. Korir
419 words in judgment
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The bottom line

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Kenya's Court of Appeal refused a prisoner permission to file his appeal 12 years late, because he couldn't explain the delay and his challenge to a life sentence had no realistic chance of succeeding.

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 Nakuru (W. Korir, JA) on a notice of motion dated 10th December 2024 by Andrew Simiyu Makokha seeking enlargement of time to appeal against a High Court judgment delivered on 20th July 2012, by which he was sentenced to life imprisonment for defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act. The applicant attributed the delay to failure to secure the judgment and proceedings in time and supported the motion with an undated affidavit. The respondent, through Senior Assistant Director of Public Prosecutions Mr. Omutelema, opposed the application, contending that the delay was inordinate and unexplained and that the intended appeal sought to challenge a lawful sentence. The court applied the settled rule 4 parameters, citing Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet, that an applicant must declare and sufficiently explain the whole period of delay. The court found the delay of 12 years and 5 months inordinate; the applicant, though incarcerated, had not demonstrated the steps taken to obtain the proceedings and judgment. Noting from the draft memorandum of appeal that the applicant intended only to challenge sentence, the court held, following the Supreme Court's decision in Republic v Mwangi (ISLA as amicus curiae), that the sentence remains lawful as long as section 8 of the Sexual Offences Act remains valid, so the intended appeal had no likelihood of success. Leave to appeal out of time was denied and the application dismissed on 9th May 2025. No costs order was made.

Key legal issues

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01

Enlargement of time under rule 4 of the Court of Appeal Rules

Holding

The application was dismissed because the delay of 12 years and 5 months was inordinate and unexplained, and the intended appeal had no likelihood of success

Reasoning

The court applied the settled rule 4 parameters: the applicant must declare and sufficiently explain the whole period of delay. Despite incarceration, the applicant did not show the steps taken to secure the judgment and proceedings over more than 12 years. Further, the exhibited draft memorandum showed he intended only to challenge sentence, which remains lawful under Supreme Court authority so long as section 8 of the Sexual Offences Act stands.

p. 2
02

Lawfulness of the minimum sentence for defilement under section 8 of the Sexual Offences Act

Holding

The life sentence imposed remains lawful, and an appeal challenging it has no prospect of success

Reasoning

Relying on the Supreme Court's decision in Republic v Mwangi (ISLA as amicus), the court held that the mandatory sentence under section 8 of the Sexual Offences Act remains valid, so an intended appeal confined to sentence lacks merit and this weighs against extending time.

p. 2

Legal principles established

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  • An applicant under rule 4 of the Court of Appeal Rules must declare the whole period of delay and sufficiently explain it; only a satisfactory explanation can unlock the door shut by lapse of time, and there is no definitive maximum or minimum period of delay
  • A sentence of life imprisonment for defilement under section 8 of the Sexual Offences Act remains lawful as long as section 8 of that Act remains valid

Court orders

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  1. 1.Leave to appeal out of time denied
  2. 2.The application dated 10th December 2024 dismissed
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (enlargement of time)

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, "Andrew Simiyu Makokha v Republic", Case Analysis (2025). Notice of motion dated 10th December 2024 (Criminal Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1175/eng@2025-05-09

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