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Case Brief · caselaw.co.ke
Court of AppealAllowedNotice of Motion dated 11th November 2025 (Criminal Appeal extension-of-time application)· [2026] KECA 678 (KLR)

Cleophas Ngeywo Kitai v Republic

Court of Appeal of Kenya
27 March 2026
769 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a imprisoned man a second chance to file his appeal late because his delay was explained and no one was harmed.

What this practically means

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Executive summary

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The applicant, Cleophas Ngeywo, was convicted of robbery with violence contrary to section 296(2) of the Penal Code in Bungoma CR Case File No. 746 of 2018 and sentenced to 25 years imprisonment. On appeal, the High Court (Sharifi, J) in Bungoma HCCRA No. E086 of 2021 enhanced the sentence to 40 years on 27 June 2025. Unable to obtain a copy of the judgment and with his notice of appeal apparently never acted upon, he filed a Notice of Motion dated 11 November 2025 seeking leave to appeal out of time. Prosecution counsel Celestine Matere conceded the application. Applying rule 4 of the Court of Appeal Rules, the court (H. A. Omondi, JA) restated the established extension-of-time factors: length of delay, reasons for the delay, prejudice to the parties, conduct of the parties, and whether the intended appeal is frivolous, drawing on Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees and Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet. Finding the delay of less than a year, the explanation plausible given the applicant's incarceration and lay status, and no prejudice to the conceding respondent, the court allowed the application, granting 14 days to file and serve the notice of appeal and 30 days thereafter to file and serve the record of appeal. No costs order was made.

Key legal issues

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01

Principles governing extension of time under rule 4

Holding

Rule 4 confers an unfettered discretion; the devised factors are length of delay, reasons for delay, prejudice, conduct of parties and whether the intended appeal is frivolous

Reasoning

The court noted rule 4 itself does not enumerate factors, so courts have developed principles from case law to achieve a just decision in each case. The discretion is unfettered and exercised case by case, guided by the Muringa Company line of authority.

p. 2
02

Application of the principles to an incarcerated lay litigant

Holding

Delay of less than a year by an incarcerated lay person unable to obtain the judgment or track his notice of appeal is excusable, and no prejudice arises where the respondent concedes

Reasoning

The applicant, a lay person in custody, lacked ready access to court records and his notice of appeal was never acted upon. He promptly filed the extension application. The explanation was plausible and the respondent conceded, so no prejudice would be caused.

p. 2

Legal principles established

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  • The Court of Appeal may extend time limited by the Rules under rule 4 on such terms as it thinks just, before or after the expiry of the period
  • There is no maximum or minimum period of delay prescribed by law, but the reasons for the delay must be reasonable and plausible

Court orders

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  1. 1.Extension of time granted to file and serve the notice of appeal out of time within fourteen (14) days
  2. 2.Applicant to file and serve the record of appeal within thirty (30) days upon service of the Notice of Appeal
On appeal from
High Court of Kenya at Bungoma
HCCRA No. E086 of 2021
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, "Cleophas Ngeywo Kitai v Republic", Case Analysis (2026). Notice of Motion dated 11th November 2025 (Criminal Appeal extension-of-time application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/678/eng@2026-03-27

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