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Court of AppealPartially AllowedCriminal Application (Notice of Motion dated 28th April 2025)· [2025] KECA 1851 (KLR)

Bernard Kiplangat Too v Republic

Court of Appeal of Kenya
10 November 2025
MGM. Gachoka
568 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a prisoner to appeal two years late, because prison conditions and lack of legal help explained the delay.

What this practically means

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Executive summary

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This is a ruling by a single Judge of Appeal (M. Gachoka, JA) at Nakuru on a Notice of Motion dated 28th April 2025 seeking leave to appeal out of time. The applicant was convicted in Kericho CM Criminal Case No. 420 of 2018 of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to 30 years' imprisonment. His first appeal was dismissed in its entirety by Ongeri, J. in Kericho High Court HCCRA No. 21 of 2019 on 10th February 2023. The applicant explained that his several attempts to appeal had elicited no favourable response. The respondent, through Senior Assistant Director of Public Prosecutions Mr. Omutelema, opposed, arguing the two-year delay was inordinate and unexplained, while contending that the lawful sentence should have been the mandatory death sentence. The court applied the Wasike v Swala [1984] KLR 591 criteria: merit in the appeal, absence of undue prejudice, and inordinate delay. It found the delay inordinate and the explanation not fully satisfactory but took account of the applicant's position as a lay litigant in prison reliant on paralegal services. Discretion was exercised in the applicant's favour. The court declined to determine the lawfulness of the 30-year sentence, holding that only a full bench could do so. The application was allowed with directions to file the notice of appeal within 14 days and the record of appeal within 30 days thereafter. No costs order was made. The decision below was not disturbed; the ruling only opens the door to a fresh appeal.

Key legal issues

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01

Whether the two-year delay in filing the intended appeal was excusable so as to warrant extension of time under rule 4

Holding

Yes. Although the delay was inordinate and the explanation not wholly satisfactory, the applicant's incarcerated status and reliance on paralegal services justified exercising discretion in his favour.

Reasoning

The court applied the Wasike v Swala principles: merit in the appeal, absence of prejudice to the respondent, and inordinate delay. It found the delay inordinate and the explanation unsatisfactory, but tempered that finding by the applicant's status as a lay person in prison dependent on paralegal services to pursue his rights. Balancing these factors, the single judge exercised discretion in the applicant's favour and granted conditional timelines rather than dismissing the application.

p. 2

Legal principles established

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  • An applicant for extension of time under rule 4 must show, in descending order of importance: merit in the intended appeal; that the extension will not cause undue prejudice to the respondent; and that the delay has not been inordinate. In this ruling the court, sitting as a single judge, exercised that discretion in favour of an incarcerated lay litigant whose explanation for delay, though not fully satisfactory, was considered in light of his circumstances.

Court orders

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  1. 1.Leave to appeal out of time granted; applicant to file his notice of appeal within 14 days from the date of the order
  2. 2.The record of appeal to be filed within 30 days thereafter
On appeal from
High Court of Kenya at Kericho
HCCRA No. 21 of 2019
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (discretion to extend time), invoked together with Articles 50(2)(q) and 159(2)(d) of the Constitution

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, "Bernard Kiplangat Too v Republic", Case Analysis (2025). Criminal Application (Notice of Motion dated 28th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1851/eng@2025-11-10

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