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Court of AppealAllowedCriminal Application (Extension of Time) arising from HCCRA No. 93 of 2020 (Bungoma)

Otunga v Republic (Criminal Application E057 of 2025) [2026] KECA 686 (KLR)

Court of Appeal of Kenya
31 March 2026
HOH. A. Omondi
724 words in judgment
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The bottom line

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Kenya's Court of Appeal let a jailed man appeal six years late, because imprisonment, no lawyer, and missing court records explained the delay.

What this practically means

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Executive summary

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This is a single-judge application ruling of the Court of Appeal at Kisumu delivered by H. A. Omondi, JA. The applicant, Moses Simiyu Otunga, had been convicted of defilement under section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to twenty years' imprisonment by the Bungoma Magistrate's Court. His first appeal to the High Court in HCCRA No. 93 of 2020 was dismissed in its entirety. He then moved the Court of Appeal by Notice of Motion dated 14th November 2025 seeking an extension of time to file and serve a Notice of Appeal out of time in preparation for a second appeal. He explained the delay by reference to his incarceration, his reliance on relatives to secure counsel without success, and the failure of the 1st appellate court to supply him with the judgment and proceedings. The State filed no response. The court invoked the unfettered discretion under rule 4 of the Court of Appeal Rules, guided by the principles in Leo Sila Mutiso v Hellen Wangari Mwangi, and noted that the applicant had also not filed his record of appeal. Weighing the length of the delay, the reasons rooted in imprisonment and lack of representation, the absence of prejudice to the respondent, and the severity of the sentence, the court allowed the application, granting fourteen days to file and serve the Notice of Appeal and thirty days thereafter to file and serve the record of appeal. No costs order was made. The application is interlocutory and dispositive only of the extension-of-time question.

Key legal issues

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01

Whether the delay of about six years in filing the Notice of Appeal should be excused

Holding

Yes. The delay, though lengthy, was satisfactorily explained by the applicant's incarceration, lack of legal representation and inability to obtain the judgment and proceedings, and the respondent would suffer no prejudice.

Reasoning

The court applied the Rule 4 discretion guided by the Leo Sila Mutiso parameters. It weighed the length of the delay, the explanation rooted in incarceration and absence of counsel, the applicant's lack of prejudice to the respondent, and the severity of the 20-year sentence, concluding that justice required allowing the applicant a second appeal.

p. 2

Legal principles established

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  • Rule 4 of the Court of Appeal Rules confers an unfettered discretion on the Court to extend time for doing any act required by the Rules, to be exercised justly in the circumstances of each case.
  • In an extension-of-time application the court considers the length of the delay, the reasons for it, the prejudice to the parties, and whether the appeal is arguable, applying the principles in Leo Sila Mutiso v Hellen Wangari Mwangi.

Court orders

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  1. 1.The application is allowed.
  2. 2.The applicant is granted extension of time to file and serve the notice of appeal out of time within fourteen (14) days of the date of the ruling.
  3. 3.The applicant shall file and serve the respondent with the record of appeal within thirty (30) days upon service of the Notice of Appeal.
On appeal from
High Court of Kenya (Bungoma)
HCCRA No. 93 of 2020
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time jurisdiction)

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, "Otunga v Republic (Criminal Application E057 of 2025) [2026] KECA 686 (KLR)", Case Analysis (2026). Criminal Application (Extension of Time) arising from HCCRA No. 93 of 2020 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/686/eng@2026-03-31

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