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Case Brief · caselaw.co.ke
Court of AppealAllowedCriminal Application (Court of Appeal, Nakuru) — Notice of Motion dated 2nd August 2025· [2025] KECA 1910 (KLR)

Elijah Kamau Ndung'u v Republic

Court of Appeal of Kenya
12 November 2025
487 words in judgment
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The bottom line

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Kenya's Court of Appeal granted a convicted man more time to appeal because he filed promptly after receiving the judgment, and no one was prejudiced.

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 delivered by Gachoka, JA on 12th November 2025 on a Notice of Motion dated 2nd August 2025 seeking leave to 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 in Naivasha CMC Criminal Case (SO) No. E085 of 2021 and sentenced to 30 years imprisonment on 18th December 2024. The High Court at Naivasha (Nzioka, J.) affirmed the conviction and upheld the sentence on 30th June 2025 in HCCRA No. E045 of 2024. The applicant explained that he received the impugned judgment only on 1st August 2025 and filed the application the following day, asserting strong grounds of appeal and no prejudice to the respondent. The application was canvassed by written submissions; the respondent, through Senior Assistant Director of Public Prosecutions Mr. Omutelema, did not oppose, finding the explanation for delay satisfactory. Relying on Rule 4 of the Court's Rules, the judge found the applicant deserving of the exercise of the Court's discretion and granted the extension: the applicant was directed to file his notice of appeal within 14 days and the record of appeal within 30 days thereafter. No costs order is recorded. This is an interlocutory decision; no decision below was disturbed and it establishes no new binding precedent beyond the application of Rule 4.

Key legal issues

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01

Extension of time to file an appeal against conviction and sentence

Holding

The applicant's explanation — that he received the impugned judgment only on 1st August 2025 and filed the application the next day — was satisfactory, the respondent did not oppose, and the discretion under Rule 4 was exercised in his favour.

Reasoning

The single judge considered the application, supporting affidavit, the period of delay, the respondent's submissions and the law. The applicant showed he was furnished with the High Court judgment on 1st August 2025 and moved the following day, demonstrating promptitude. The respondent, through Senior Assistant Director of Public Prosecutions Mr. Omutelema, did not oppose, considering the explanation for delay satisfactory. No prejudice was identified.

p. 2

Legal principles established

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  • Under Rule 4, the Court may extend time limited by the Rules for doing any act, whether before or after the doing of the act, and the exercise of the discretion turns on the explanation for delay and prejudice to the other party.

Court orders

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  1. 1.Leave granted to appeal out of time by extension of the time limited for filing the appeal
  2. 2.Applicant directed to file his notice of appeal within 14 days from the date of the order
  3. 3.Record of appeal to be filed and served within 30 days thereafter
On appeal from
High Court of Kenya at Naivasha
HCCRA No. E045 of 2024
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of 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, "Elijah Kamau Ndung'u v Republic", Case Analysis (2025). Criminal Application (Court of Appeal, Nakuru) — Notice of Motion dated 2nd August 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1910/eng@2025-11-12

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