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Court of AppealDismissedCriminal Application (Extension of Time) dated 6th November 2025 (arising from HCCRA Misc Appl No. E035 of 2025)

PS v Republic (Criminal Application E090 of 2025) [2026] KECA 217 (KLR)

Court of Appeal of Kenya
12 February 2026
JMJ. Mativo
439 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that when the High Court refuses to let you appeal out of time, that refusal is final and cannot itself be appealed.

What this practically means

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Executive summary

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This was a single-judge ruling of the Court of Appeal at Nakuru delivered by Mativo, JA, on 12th February 2026 on a notice of application dated 6th November 2025. The applicant, PS, sought extension of time to appeal to the Court of Appeal against the ruling and order in HCCRA Misc Appl No. E035 of 2025, by which the High Court on 13th August 2025 refused his second application for leave to appeal out of time, deeming it a duplication of HCCRREV E135 of 2024. He had earlier been convicted of incest contrary to section 20(1) of the Sexual Offences Act and sentenced to life imprisonment by the Chief Magistrate's Court at Narok in Criminal Case No. 76 of 2013, and a first leave application had been dismissed on 15th November 2017. He attributed the delay to illiteracy, indigence and misadvice by inmates and volunteer lawyers. The State, through Mr. Omutelema, Senior Assistant Director of Public Prosecution, opposed the application, arguing that a High Court order refusing leave to appeal out of time is not appealable. The Court agreed, reproducing section 361(8)(b) of the Criminal Procedure Code, which makes such a refusal final. Holding the application a non-starter, the Court declined to exercise its Rule 4 discretion and dismissed the application. No costs order was made. The binding proposition for lower courts is that a refusal by the High Court to admit an appeal out of time under section 349 of the Criminal Procedure Code is final and cannot be the subject of an extension-of-time application to the Court of Appeal.

Key legal issues

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01

Whether an order refusing leave to appeal out of time is appealable to the Court of Appeal

Holding

It is not. Section 361(8)(b) of the Criminal Procedure Code expressly excludes such a refusal from second appeals and declares it final, so the Court cannot exercise its discretion under Rule 4 of its Rules.

Reasoning

The Court reproduced section 361(8)(b) of the Criminal Procedure Code, which provides that the section on second appeals does not apply to a refusal by the High Court to admit an appeal out of time under section 349, and that such a refusal is final. On that basis the application for extension of time was a non-starter and the Court declined to exercise its Rule 4 discretion. The State's objection on jurisdiction was effectively sustained.

p. 2

Legal principles established

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  • A refusal by the High Court to admit an appeal out of time under section 349 of the Criminal Procedure Code is final and not appealable, and the Court of Appeal has no jurisdiction to entertain an extension-of-time application directed against such a refusal.

Court orders

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  1. 1.The application dated 6th November 2025 is dismissed
On appeal from
High Court of Kenya
HCCRA Misc Appl No. E035 of 2025
Jurisdiction invoked
The Court proceeded on its general power to extend time under Rule 4 of the Court of Appeal Rules, but held it was barred by section 361(8)(b) of the Criminal Procedure Code

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, "PS v Republic (Criminal Application E090 of 2025) [2026] KECA 217 (KLR)", Case Analysis (2026). Criminal Application (Extension of Time) dated 6th November 2025 (arising from HCCRA Misc Appl No. E035 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/217/eng@2026-02-12

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