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Court of AppealAllowedNot stated in the judgment

Nyamage v Republic (Criminal Application E059 of 2025) [2026] KECA 227 (KLR)

Court of Appeal of Kenya
10 February 2026
LKL. Kimaru
324 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a 20-year convict to appeal late, accepting financial hardship and delays in getting the judgment as valid reasons.

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 delivered by L. Kimaru, JA, on 10 February 2026, on an application under Rule 4 of the Court of Appeal Rules for extension of time to lodge an appeal. The applicant, Herbert Nyamage, had been convicted of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced to twenty years' imprisonment. His appeal to the High Court was dismissed, and he sought leave to appeal to the Court of Appeal out of time. He attributed the delay to financial hardships that prevented his family from raising legal fees to instruct an advocate, and to difficulties in obtaining the High Court judgment in time. The application was supported by his affidavit; the respondent, through a replying affidavit of Victorine Kitoto, elected not to oppose it in the interests of justice. The court restated that its jurisdiction under Rule 4 is an unfettered discretion to extend or refuse extension of time, found the applicant's reasons excusable and the delay not inordinate, and allowed the application. It granted leave to appeal out of time and directed that the notice of appeal be filed and served within fourteen days of the date of the ruling. No costs order was made. The decision is discretionary and interlocutory in character and does not disturb any decision below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has shown sufficient reasons to warrant an extension of time to file an appeal out of time

Key legal issues

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01

Extension of time to appeal out of time under Rule 4

Holding

The court is satisfied by the reasons given by the applicant that prevented him from filing the appeal in time. The reasons are excusable. The period of delay was not inordinate.

Reasoning

The applicant explained the delay by financial constraints preventing his family from raising legal fees to instruct an advocate, and difficulties in securing the High Court judgment. The respondent did not oppose the application, broadly in the interests of justice. The court found the reasons excusable and the delay not inordinate, and exercised its discretion in the applicant's favour.

p. 1

Legal principles established

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  • The Court's jurisdiction under Rule 4 of the Court of Appeal Rules is an unfettered discretion to extend or not extend time for any steps to be taken outside the period prescribed by the Rules.

Court orders

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  1. 1.The application for extension of time is allowed
  2. 2.The applicant is granted leave to appeal out of time
  3. 3.The notice of appeal shall be filed and served within fourteen (14) days of 10th February, 2026

The bench

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One judgment of the whole court — no separate or dissenting opinions.

LK
majority

Wrote the judgment

On appeal from
High Court
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This Court’s jurisdiction under Rule 4 of the Court of Appeal Rules grants it unfettered discretion to extend or not extend time for any steps to be taken outside the period prescribed by the Rules.
p. 1jurisdiction under Rule 4
The application has merit and is hereby allowed. The applicant is hereby granted leave to appeal out of time. The notice of appeal shall be filed and served within fourteen (14) days of today’s date.
p. 2final orders

Issues in the judgment

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minor

The coram lists the judge only as 'L. KIMARU' with initials and surname, and the appeal/heading details including case number are not reproduced in the text.

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, "Nyamage v Republic (Criminal Application E059 of 2025) [2026] KECA 227 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/227/eng@2026-02-10

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