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Court of AppealPartially AllowedCriminal Application (unspecified number, Nakuru) – Notice of Motion dated 11th June 2025· [2025] KECA 1882 (KLR)

Jwm v Republic

Court of Appeal of Kenya
11 November 2025
940 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a prisoner serving a life sentence to file his appeal about five years late because he gave a good reason, even though the delay was long.

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 Nakuru (M. Gachoka, JA) delivered on 11th November 2025 on a Notice of Motion dated 11th June 2025 brought under rule 4 of the Court of Appeal Rules, 2022, seeking leave to appeal out of time against a conviction for incest contrary to section 20(1) of the Sexual Offences Act and a life sentence, as upheld by the Naivasha High Court in HCCRA No. 40 of 2017, dismissed on 29th October 2020. The applicant, who had a parallel appeal in HCCRA No. 45 of 2022 (dismissed, and per his account summarily dismissed on transfer to Nyandarua High Court for non-attendance), explained the roughly five-year delay as the time he waited to pursue both appeals together, and complained that proceedings and judgment were not furnished in good time. He relied on the Salat, Fahim Yasin Twaha and Leo Sila Mutiso authorities; the respondent, through the ODPP, urged that the five-year delay was inordinate and inexcusable. The court applied the settled Henry Mukora Mwangi / Leo Sila Mutiso guidelines (length of delay, reason for delay, arguability, prejudice) and held the delay sufficiently explained, allowing the application in the interest of justice. The applicant was directed to file his notice of appeal within 14 days and the record of appeal within 30 days thereafter. Consolidation of the two appeals was expressly reserved for a full bench. No costs order was made. The High Court's decision itself was not disturbed; this ruling only opens the gate to a second appeal.

Key legal issues

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01

Whether the delay of about five years in lodging the appeal was excusable

Holding

Yes – the applicant's explanation, that he awaited the outcome of his other appeal (HCCRA No. 45 of 2022) before pursuing both appeals, and non-furnishing of proceedings, was accepted as sufficient.

Reasoning

Applying the settled Leo Sila Mutiso factors (length of delay, reason for delay, arguability of appeal, prejudice to respondent), the single judge found the applicant had succinctly explained the delay. Since the discretion is unfettered and the applicant faced life imprisonment, the interest of justice favoured granting the extension despite the inordinate length of the delay.

p. 2
02

Whether a single judge on a rule 4 application may consolidate the two appeals

Holding

No – consolidation is for a full bench.

Reasoning

While granting the extension of time, the judge declined to decide the consolidation question, holding that it can only be determined before a full bench. The application was therefore allowed only to the extent of extending time, with filing timelines prescribed.

p. 2

Legal principles established

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  • The decision whether or not to extend time for appealing is discretionary and guided by the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the prejudice to the respondent.
  • On an application under rule 4, the single Judge exercises an unfettered discretion.

Court orders

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  1. 1.The Notice of Motion dated 11th June 2025 is allowed to the extent that the applicant shall file his notice of appeal within 14 days
  2. 2.Thereafter, the record of appeal shall be filed and served within 30 days
  3. 3.The question of consolidation of the two appeals is left for determination before a full bench
On appeal from
High Court of Kenya at Naivasha
HCCRA No. 40 of 2017
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022 (discretion to extend time for appealing)

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, "Jwm v Republic", Case Analysis (2025). Criminal Application (unspecified number, Nakuru) – Notice of Motion dated 11th June 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1882/eng@2025-11-11

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