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Court of AppealDismissedNot stated in the judgment

Nyandege v Republic (Criminal Application E025 of 2026) [2026] KECA 1347 (KLR)

Court of Appeal of Kenya
7 July 2026
1,854 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This was a single-judge application before the Court of Appeal at Nairobi, delivered by Ali-Aroni, JA on 7th July 2026, under Rule 4 of the Court of Appeal Rules, 2022 and Article 159(2)(d) of the Constitution. The applicant, convicted by the Chief Magistrate's Court at Homabay in Ethics & Anti-Corruption Case No. 1 of 2018 and fined Kshs. 7,500,000 in default five years' imprisonment, had his appeal dismissed by the High Court at Milimani on 15th December 2022. He sought extension of time to lodge a notice of appeal dated 7th April 2025, citing incarceration until 30th May 2025, ill health, lack of resources, and family obligations. The respondent opposed, arguing an unexplained delay of approximately three years and four months, absence of diligent use of prison appeal mechanisms such as Prison Form 68B or Rule 113 fee-waiver procedures, and lack of arguable grounds. The Court applied the principles in Leo Sila Mutiso vs Rose Hellen Wangari Mwangi and held that the delay was inordinately long and the explanation insufficient. The Court further observed that the intended appeal on the mandatory additional fine under sections 48(1)(b) and 48(2) of the Anti-Corruption and Economic Crimes Act fell outside its jurisdiction as a question of sentence under section 361 of the Criminal Procedure Code. The application was dismissed with no costs order recorded.

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 given a satisfactory explanation for the inordinate delay of approximately three years and four months in filing a notice of appeal
  2. 2.Whether the intended appeal is arguable
  3. 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

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01

Whether the applicant's explanation for the delay of approximately three years and four months was satisfactory

Holding

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.

Reasoning

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.

p. 4
02

Whether the intended appeal was arguable

Holding

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.

Reasoning

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.

p. 4
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Whether the Court should exercise its discretion under Rule 4 to extend time

Holding

The discretion was declined; the application was dismissed.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Extension of time to appeal out of time refused
  2. 2.Application dismissed

The bench

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

majority

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

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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.

p. 4

Costs

No costs order was made in the judgment; the judgment ends with dismissal of the application and no mention of costs.

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.

I must say, resoundingly, that the delay is inordinately long and the explanation insuficient to sustain the prayer for an extension of time.
p. 4Adequacy of explanation for inordinate delay under Rule 4
It is commonplace for inmates to be accorded facilities in prison to pursue their appeals.
p. 4Duty of incarcerated applicants to use prison appeal facilities
In the end, I decline to extend the time as prayed and dismiss the application.
p. 4Final orders - dismissal of the application

Issues in the judgment

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minor

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

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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, "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.