Nyandege v Republic (Criminal Application E025 of 2026) [2026] KECA 1347 (KLR)
The bottom line
#Kenya's Court of Appeal refused to extend time to appeal after a three-year delay, because the applicant never used prison appeal facilities or fee waivers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has given a satisfactory explanation for the inordinate delay of approximately three years and four months in filing a notice of appeal
- 2.Whether the intended appeal is arguable
- 3.Whether the Court should exercise its discretion under Rule 4 to extend time and deem the notice of appeal dated 7th April 2025 as properly filed and served
Key legal issues
#Whether the applicant's explanation for the delay of approximately three years and four months was satisfactory
The delay was inordinately long and the explanation insufficient; imprisonment did not excuse the applicant because he did not use available prison mechanisms to appeal and the medical evidence did not show illness preventing the appeal.
The Court treated the satisfactory explanation for delay as the threshold inquiry before considering other Rule 4 factors. It found it commonplace for inmates to be accorded facilities in prison to pursue appeals, and the applicant neither used Prison Form 68B nor invoked Rule 113 for fee waiver and assistance. The medical evidence annexed did not demonstrate any chronic illness that would have prevented pursuit of the appeal for such a long period.
Whether the intended appeal was arguable
The intended appeal, focused on the interpretation and application of sections 48(1)(b) and 48(2) of the Anti-Corruption and Economic Crimes Act regarding the mandatory additional fine, was effectively not arguable because the challenge to sentence is outside the Court's second-appeal jurisdiction under section 361 of the Criminal Procedure Code.
Without deciding the merits finally, the Court observed, as the first appellate court had, that sentencing is a matter of discretion and that under section 361 of the Criminal Procedure Code a question of sentence is a matter of fact, outside the Court's jurisdiction on second appeal. The sentence imposed was also lawful as prescribed by law, undermining the central ground of the intended appeal.
Whether the Court should exercise its discretion under Rule 4 to extend time
The discretion was declined; the application was dismissed.
Having found the delay substantial and unexplained, and the intended appeal not arguable on the sentencing question, the Court exercised its discretion against the applicant. No prejudice analysis was reached in the applicant's favour because the threshold explanation failed.
Legal principles established
#- In exercising discretion under Rule 4 of the Court of Appeal Rules, the Court considers the length of the delay, the reason for the delay, the chances of the intended appeal succeeding, and the degree of prejudice to the respondent; a substantial delay must first be satisfactorily explained before other factors are considered.
- Incarcerated appellants must demonstrate that they attempted to use the facilities available within the prison system, such as Prison Form 68B or the procedure under Rule 113 of the Court of Appeal Rules, to initiate their appeals; mere assertion of imprisonment, illness, or lack of resources is not a sufficient explanation for delay.
- Questions of sentence are matters of fact within the meaning of section 361 of the Criminal Procedure Code and fall outside the jurisdiction of the Court of Appeal in a second appeal where the sentence meted out was lawful.
Court orders
#- 1.Extension of time to appeal out of time refused
- 2.Application dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Milimani
- Criminal Appeal (ACECA) No. 4 of 2022 as consolidated with ACEC Appeal No. E005 of 2022
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2022, read with Article 159(2)(d) of the Constitution
Relief refused
#Extension of time to file and serve a notice of appeal out of time, and deeming of the notice of appeal dated 7th April 2025 as properly filed and served
The delay of three years and more was inordinately long and inadequately explained; the applicant failed to use prison facilities or fee-waiver mechanisms, the medical evidence did not show chronic illness preventing the appeal, and the intended appeal on sentencing falls outside the Court's jurisdiction under section 361 of the Criminal Procedure Code.
Costs
No costs order was made in the judgment; the judgment ends with dismissal of the application and no mention of costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I must say, resoundingly, that the delay is inordinately long and the explanation insuficient to sustain the prayer for an extension of time.
It is commonplace for inmates to be accorded facilities in prison to pursue their appeals.
In the end, I decline to extend the time as prayed and dismiss the application.
Issues in the judgment
#Internal chronological inconsistency: the application notice of motion is dated 28th April 2026 but the supporting affidavit records that a notice of appeal dated 7th April 2025 is sought to be deemed properly filed; the dates of the notice of appeal and the application are over a year apart, which is unusual but not necessarily contradictory on the face of the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyandege v Republic (Criminal Application E025 of 2026) [2026] KECA 1347 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1347/eng@2026-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.