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Court of AppealAllowedMotion on notice dated 26th June 2024 (Criminal Appeal)· [2025] KECA 1745 (KLR)

LOW v Republic (Criminal Application E097 of 2024) [2025] KECA 1745 (KLR)

Court of Appeal of Kenya
15 October 2025
ASAsike-Makhandia
886 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 gave a life-sentence convict 45 more days to file his second appeal, stressing that the right to appeal cannot be taken away by delay or technicalities.

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 (Asike-Makhandia JA) on an application for leave to file an appeal out of time. The applicant was convicted of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to life imprisonment by the Senior Principal Magistrate's Court at Bondo. His first appeal to the High Court at Siaya (Aburili J) was dismissed in its entirety on 27th April 2022, with the High Court affirming the trial court's findings. Desiring to exercise his right of second appeal, the applicant moved the Court of Appeal by motion dated 26th June 2024 seeking extension of time under rule 4 of the Court of Appeal Rules, 2022, though the motion did not itself cite the rule; the court nonetheless treated it as a rule 4 application. The applicant, a layperson, attributed the delay to logistical and financial constraints and the failure of his family to engage counsel, and contended that refusal would permanently deprive him of his constitutional right to appeal. The Republic was served but filed no opposition, and the application was taken as unopposed. Applying the established rule 4 principles - length of delay, reason for delay, chances of the appeal succeeding, and prejudice - and anchored in the non-derogable right to a fair trial, access to justice, and the constitutional injunction against undue regard to procedural technicalities, the court granted leave to file and serve the notice and record of appeal out of time within forty-five days. The applicant will be required to demonstrate merit in the intended second appeal itself.

Key legal issues

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01

Extension of time to file a second appeal

Holding

Leave granted where the applicant demonstrated reasonable cause for the delay, acted with diligence once circumstances permitted, and where the respondent would suffer no prejudice.

Reasoning

The court applied the established rule 4 principles: length of delay, reason for delay, chances of success on appeal, and prejudice. The applicant, a layperson, explained the delay by logistical and financial constraints after his first appeal was dismissed. The respondent was served but filed no opposition. The court weighed the non-derogable right to a fair trial, access to justice, and the duty to disregard procedural technicalities, and exercised its discretion in the applicant's favour.

p. 2
02

Constitutional and international right to appeal

Holding

The right of appeal forms part of the non-derogable fair-trial guarantee, and international instruments affirm the right of a convicted person to review of conviction and sentence by a higher tribunal.

Reasoning

The court anchored its discretion in article 25(c) (fair trial as non-derogable), article 48 (access to justice) and article 159(2)(d) (justice without undue regard to procedural technicalities) of the Constitution, and in article 7 of the African Charter and article 14(5) of the ICCPR, both ratified by Kenya.

p. 2

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary, guided by the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the likely prejudice to the parties.
  • An application that does not cite the relevant rule may still be treated as one brought under rule 4 where the substance of the application shows it.

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 within forty-five (45) days

Authorities

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Legislation

  • Sexual Offences Actsection 8(1) as read with section 8(2)
  • Court of Appeal Rules, 2022rule 4
  • Constitution of Kenyaarticle 25(c)
  • Constitution of Kenyaarticle 48
  • Constitution of Kenyaarticle 159(2)(d)
  • African Charter on Human and Peoples' Rightsarticle 7
  • International Covenant on Civil and Political Rightsarticle 14(5)

Cases cited (2)

  • Harrison Kariuki Njuguna v Republic
    [2020] eKLR
  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others
    [2014] eKLR
On appeal from
High Court of Kenya at Siaya
Jurisdiction invoked
rule 4 of the Court of Appeal Rules, 2022

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, "LOW v Republic (Criminal Application E097 of 2024) [2025] KECA 1745 (KLR)", Case Analysis (2025). Motion on notice dated 26th June 2024 (Criminal Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1745/eng@2025-10-15

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