HMM v Republic (Criminal Application E054 of 2025) [2025] KECA 2147 (KLR) (28 November 2025) (Ruling) Neutral citation: [2025] KECA 2147 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI CRIMINAL APPLICATION E054 OF 2025 S OLE KANTAI, JA NOVEMBER 28, 2025 BETWEEN HMM .......................................................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (An application for leave to appeal out of time appeal against the Judgment of the High court of Kenya at Kerugoya (J. K. Ng’arng’ar, J.) delivered on 28th May, 2025 in H.C. CRA. No. E059 of 2023) RULING 1. By the undated Motion forwarded by Officer in Charge, Nyeri Maximum Prison on 11th September, 2025 the applicant, HMM applies that he be granted leave to appeal out of time. He says in the supporting affidavit that he was sentenced to imprisonment for life for the ofience of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act; his first appeal to the High Court at Kerugoya was dismissed on 28th May, 2025; that he was not furnished with a copy of judgment when it was delivered but that he has now been availed a copy; that his intended appeal has high chances of success and that he should be granted leave to appeal out of time. He has attached a copy of the judgment in High Court of Kenya at Kerugoya Criminal Appeal No. E059 of 2023. 2. Parties were served with hearing notice on 11th November, 2025 (odppnyeri nyeri@odpp.go.ke) where they were notified of hearing date and required to do certain things within stipulated timeliness. I have not seen written submissions from either side. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2147/eng@2025-11-28 1
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3. Principles that govern applications for extension of time were well set out in Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi Civil Application No. Nai 255 of 1997 as follows: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether to grant an extension of time, are first, the length of the delay, secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted." 4. The applicant here says that when judgment was delivered by the High Court no copy was availed to him and he has now obtained a copy; he wants to appeal and he thinks his appeal has high chances of success. 5. I note that judgment of the High Court was delivered on 28th May, 2025 and that the application is forwarded to court on 11th September, 2025. The applicant is a convict who says that he has moved the Court within reasonable time. I agree. There is no inordinate delay and the slight delay is reasonably explained. I note that the applicant is serving a prison term for life and he should try his chances in a second appeal. 6. I allow the Motion. Let Notice of Appeal be lodged within ten (10) days and Record of Appeal within twenty-one (21) days thereafter. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. OLE KANTAI ................................. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2147/eng@2025-11-28 2
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