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Court of AppealAllowedCriminal Application (Extension of Time) dated 6th January 2025

Nyasundi v Republic (Criminal Application E002 of 2025) [2025] KECA 1788 (KLR)

Court of Appeal of Kenya
24 October 2025
HOH. A. Omondi
1,113 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a prisoner four extra years' leeway to appeal, ruling that incarceration plausibly explains late filing of a notice of appeal.

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 (H. A. Omondi, JA) on an application dated 6th January 2025 seeking extension of time to lodge a second appeal. The applicant was convicted of defilement under section 8(1) as read with 8(3) of the Sexual Offences Act and sentenced to 30 years imprisonment by the magistrates' court. His first appeal to the High Court (HCCRA No. 70 of 2017) was dismissed in its entirety by Aburuli, J. on 26th July 2017, but he failed to lodge a notice of appeal within the 14 days prescribed by rule 61(1) of the Court of Appeal Rules, resulting in a delay of approximately four years. The applicant explained the delay on the basis that, as an incarcerated lay person, he was not served with the High Court proceedings and judgment in time and could not easily track the status of his appeal. Notably, the respondent, through prosecution counsel, acknowledged the delay was inordinate but conceded that the appeal was arguable and that no prejudice would be suffered, particularly given the length of the sentence. The court applied its discretion under rule 4 of the Court of Appeal Rules, adopting the well-established parameters from Leo Sila Mutiso v Hellen Wangari Mwangi and the supplementary considerations in Muring Company Ltd, and the Chemaringo principle that any delay must be satisfactorily explained. Finding the explanation plausible and the prejudice to the applicant grave if refused, the court allowed the application and granted 14 days to file and serve the notice of appeal and 30 days thereafter to file and serve the record of appeal.

Key legal issues

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Whether the applicant deserved an extension of time to appeal out of time against the High Court's dismissal of his appeal

Holding

The application was allowed: the four-year delay was satisfactorily explained by the applicant's incarceration as a lay person and the delay in obtaining the High Court record, and the respondent conceded the appeal was arguable and that no prejudice would be suffered.

Reasoning

The court invoked its unfettered discretion under rule 4 of the Court of Appeal Rules and applied the Leo Sila Mutiso parameters: length of delay, reason for delay, arguability of the appeal and prejudice. The applicant, an incarcerated lay person, could not easily reach the courts to track his appeal; the sentence challenged was a long one of 30 years, so refusal would occasion great prejudice; and the respondent conceded the appeal was not frivolous.

p. 3

Legal principles established

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  • An application for extension of time is decided by considering the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.
  • There is no minimum or maximum period of delay prescribed; the delay must be satisfactorily, plausibly and reasonably explained.

Court orders

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  1. 1.Extension of time granted to file and serve the notice of appeal out of time within fourteen (14) days of the date of the ruling
  2. 2.The applicant shall file and serve the respondent with the record of appeal within thirty (30) days upon service of the Notice of Appeal
On appeal from
High Court of Kenya
HCCRA No. 70 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend 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, "Nyasundi v Republic (Criminal Application E002 of 2025) [2025] KECA 1788 (KLR)", Case Analysis (2025). Criminal Application (Extension of Time) dated 6th January 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1788/eng@2025-10-24

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