Otunga v Republic (Criminal Application E057 of 2025) [2026] KECA 686 (KLR) (31 March 2026) (Ruling) Neutral citation: [2026] KECA 686 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CRIMINAL APPLICATION E057 OF 2025 HA OMONDI, JA MARCH 31, 2026 BETWEEN MOSES SIMIYU OTUNGA ..................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an application for extension of time to appeal out of time against the Judgment of the High Court of Kenya at Bungoma in HCCRA No. 93 of 2020) RULING 1. The applicant, Moses Simiyu Otunga, was charged with the offence defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006 at Bungoma Magistrate court in Criminal Case No. 10 of 2017, and convicted and sentenced to serve 20 years imprisonment. Aggrieved by the outcome, he appealed against the conviction and sentence to the High Court in HCCRA No. 93 of 2020, which was dismissed in its entirety. 2. By a Notice of Motion dated 14th November 2025 the applicant seeks an extension of time to appeal out of time. He explains that he did not apply on time for lack of the judgement and the proceedings on time to enable me apply on time; that he relied on relatives to hire an advocate for him, to no avail, leading to the delay in filing the appeal and even the application. 3. In his written submissions, the applicant reiterates that the main reason why he did not file his Notice of Appeal is that the 1st appellate court failed to provide him with the impugned judgement on time; that he had applied on time immediately after his dismissal of the first appeal but he never received any response. 4. The respondent did not file any response either by way of a replying affidavit or written submissions. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/686/eng@2026-03-31 1
page 1 of 2
5. As aptly pointed out by the applicant, this Court is allowed to exercise its unfettered discretion as provided under rule 4 of the Court of Appeal Rules which provides as follows: The court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. 6. Although Rule 4 does not provide for factors the court ought to consider in an application for extension of time past pronouncements by this Court have crafted appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. See for instance Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 which laid down the parameters to consider. 7. Under Rule 61(1) of this Court’s Rules: A person who desires to appeal to the court shall give Notice of Appeal in writing, which shall be lodged in six copies with the Registrar of the superior court at the place where the decision against which it is desired to appeal was given, within fourteen days after the date of that decision, and the notice of appeal shall institute the appeal. 8. This means that the applicant ought to have filed the notice of appeal within 14 days of the delivery of the decision which he seeks to appeal, but that did not happen; nor has the applicant filed and served his record of appeal. I take into account the length of the delay involved which is about 6 years, the reason or reasons for the delay being an odd cluster of inhibitions involving his inability to follow up on timely availability of record of appeal, compounded by the fact of incarceration and having no legal representation, the possible prejudice he stands to suffer if he is not given a chance to have a final bite at the cherry on 2nd appeal. Conversely, the respondent does not stand to suffer any prejudice. 9. Taking into consideration the nature of sentence he has been consigned to, I am persuaded that justice will be served by allowing him a chance to make his bid to freedom. Consequently, this Court finds that the application is merited and is allowed. The applicant is granted extension of time to file and serve the notice of appeal out of time within fourteen (14) days of today’s date. The applicant shall file and serve the respondent with the record of appeal within thirty (30) days upon service of the Notice of Appeal. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF MARCH, 2026. H. A. OMONDI …………………………… 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/2026/686/eng@2026-03-31 2
page 2 of 2