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Court of AppealAllowedCriminal Application (Motion)· [2025] KECA 1752 (KLR)

Michael Githinji Waimiri v Republic

Court of Appeal
24 October 2025
1,053 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal gave an imprisoned man extra time to appeal, waived his court fees, and confirmed that poverty and imprisonment justify filing delays.

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 Nyeri by Ole Kantai, JA, on a Motion by Michael Githinji Waimiri seeking waiver of court fees, extension of time to lodge an appeal, and deeming of a notice of appeal filed out of time. The applicant, serving a 30-year imprisonment term imposed by the Court of Appeal on 29th January 2021 in place of a death sentence for robbery with violence, sought to appeal to the Court of Appeal on the ground that section 333(2) of the Criminal Procedure Code was not applied, i.e. that the time he spent in pre-trial custody from his arrest on 10th March 2010 was not deducted. He explained his delay by his incarceration, his family's poverty, inability to afford court fees, and the High Court's failure to avail the file for his perusal. The respondent did not oppose the application. The judge held that these were valid reasons for delay, citing the Supreme Court's dictum in Andrew Kiplagat Chemaringo on a plausible explanation unlocking discretionary favour. The court also flagged, without deciding, an interesting question arising from the Muruatetu 2 directions that Muruatetu 1 applies only to murder convictions, namely whether the reduction of a death sentence in a robbery with violence case is at risk of being reversed. The Motion was allowed: the appeal was to be filed within fourteen days and court fees were waived. No decision on the merits of the intended appeal was made, and no costs order was pronounced.

Key legal issues

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01

Extension of time to lodge an appeal by an incarcerated appellant

Holding

Incarceration, poverty, inability to afford court fees, and non-availability of the High Court record constitute valid reasons for delay justifying extension of time

Reasoning

The single judge noted the applicant had traversed the full judicial hierarchy and that the delay was occasioned by the High Court's failure to avail the file, compounded by his incarceration and poverty. These were held to be valid reasons in an application of this nature, and the respondent did not oppose.

p. 2
02

Credit for pre-trial custody under section 333(2) of the Criminal Procedure Code

Holding

The intended appeal concerns entitlement to credit for time served in custody before conviction and sentence, a point already considered by the Court of Appeal and High Court but not novel-barred

Reasoning

The court observed that the point the applicant wishes to argue relates to section 333(2) of the Criminal Procedure Code and that it is not a novel point, having been considered by both superior courts. It did not decide the merits, leaving them to the full appeal.

p. 2
03

Effect of Muruatetu 2 directions on sentence reduction in robbery with violence convictions

Holding

The judge flagged, without deciding, the question whether the Court of Appeal's reduction of a death sentence in a robbery with violence case is imperilled by the Muruatetu 2 directions confining Muruatetu 1 to murder convictions

Reasoning

The court noted that Muruatetu 2 clarified that Muruatetu 1 applied only to murder convictions, raising an interesting question about a death sentence in a robbery with violence case being replaced with 30 years' imprisonment. The judge expressly declined to answer the question, as it belongs to the full appeal.

p. 3

Legal principles established

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  • A plausible and satisfactory explanation for delay is the key that unlocks the court's flow of discretionary favour in extension-of-time applications

Court orders

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  1. 1.The Motion is allowed
  2. 2.Appeal to be filed within fourteen (14) days
  3. 3.Court fees waived
On appeal from
High Court at Kerugoya
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal to extend time and waive fees; applicant given leave by the High Court to appeal to the Court of Appeal

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, "Michael Githinji Waimiri v Republic", Case Analysis (2025). Criminal Application (Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1752/eng@2025-10-24

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