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Court of AppealAllowedMiscellaneous Criminal Application dated 9th December, 2024· [2025] KECA 1399 (KLR)

Andere v Republic (Criminal Application E170 of 2024) [2025] KECA 1399 (KLR)

Court of Appeal of Kenya
31 July 2025
785 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 late because prison paralegals failed to file his papers, confirming courts prioritise substantive justice over strict deadlines.

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 Kisumu, delivered by Asike-Makhandia, JA, on an application dated 9th December 2024 brought under Rule 4 of the Court of Appeal Rules. The applicant, John Andere, who was charged, tried, convicted and sentenced on 29th March 2022, sought leave to file and serve his notice and record of appeal out of time, the prescribed period having long lapsed. He explained the delay on the ground that, while in custody, he had instructed paralegals within the prison facilities to file the appeal, but they failed to do so, and he only became aware of the failure after the time had expired. He maintained that the delay was excusable, occurred in utmost good faith, and was due to circumstances beyond his control, and he invoked Article 48 of the Constitution on access to justice. He relied on the High Court decision in Republic v Kiprop, setting out considerations for extension of time, including whether the delay is an abuse of the court, inordinate and inexcusable, prejudicial to fair trial, and the prejudice dismissal would cause. The respondent, having been served, expressly conceded the application, stating the delay was not inordinate given the reasons adduced. The court allowed the application and granted the applicant leave to file and serve the notice and record of appeal out of time within forty-five days from the date of the ruling. No costs order was pronounced. This is an interlocutory discretionary ruling, not a binding appellate disposition of an appeal; the decision below (the conviction and sentence) remains undisturbed pending the intended appeal.

Key legal issues

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01

Whether the delay in filing the record of appeal should be excused

Holding

The court accepted the applicant's explanation that, as an incarcerated person relying on prison paralegals who failed to lodge the appeal, the delay was excusable and beyond his control; the respondent did not oppose the application; and leave to appeal out of time was granted.

Reasoning

The single judge noted the applicant, while in custody, had instructed paralegals within the prison to file the appeal, and only learned of their failure after the time had lapsed. The delay was therefore attributed to circumstances beyond his control rather than indolence. The State, upon being served, expressly conceded the application, stating the delay was not inordinate given the reasons in the supporting affidavit. Balancing these factors, and in the interest of substantive justice and access to justice under Article 48 of the Constitution, the court exercised its discretion under Rule 4 in the applicant's favour.

p. 2

Legal principles established

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  • An extension of time under Rule 4 is discretionary, exercised to serve substantive justice rather than to assist the indolent, guided by considerations such as abuse of process, whether the delay is inordinate and inexcusable, risk to fair trial, and prejudice to the parties.
  • The concession of a respondent to an extension-of-time application, coupled with an acceptable explanation for the delay, supports the grant of leave to appeal out of time.

Court orders

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  1. 1.Leave granted to the applicant to file and serve the notice and record of appeal out of time
  2. 2.The notice and record of appeal to be filed and served within forty-five (45) days from the date of the ruling

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Court of Appeal RulesRule 4

Cases cited (1)

  • Republic v Kiprop
    [Miscellaneous Criminal Case E041 of 2023] [2023] KEHC 20679 [KLR]
On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (inherent extension-of-time jurisdiction)

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, "Andere v Republic (Criminal Application E170 of 2024) [2025] KECA 1399 (KLR)", Case Analysis (2025). Miscellaneous Criminal Application dated 9th December, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1399/eng@2025-07-31

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