Musyoka Muasya v Republic

6. Rule 4 of the Court of Appeal Rules provides: “ 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.” 7. As stated, time and again, Rule 4 of this Court’s Rules gives a single judge an unfettered discretion and so long as the discretion is exercised judicially, a Judge would be entitled to consider any other factor outside those listed so long as the factor is relevant to the issue since the principles enunciated before are not exhaustive. 8. The principles that guide this Court in determining whether to extend time pursuant to Rule 4 of the Rules of this Court are now well settled. In Mwangi vs Kenya Airways [2003] KLR 486 at page 489 the Court stated as follows: “ Over the years, the Court has set out guidelines on what a single judge should consider when dealing with an application for extension of time under Rule 4. For instance, in Leo Sila Mutiso vs Rose Hellen Wangari Mwangi, (Civil Application No. Nai. 255 of 1997, the Court expressed itself thus: It is now well settled that the decision whether to extend the time is essentially discretionary. It is also well settled 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 appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.” 9. The principles enunciated are the principles I proceed to apply in the instant case in determining whether the prayers sought by the applicant in his Notice of Motion 3rd September, 2025 should be granted. The applicant’s prayers are that the Honourable Court extend time and grant leave to allow the applicants file notice of appeal and the Memorandum of Appeal out of time against the judgment dated 19th May, 2019 in Criminal Case No. 33 of 2025 in the High Court in Kitui, and that the notice of appeal and the memorandum of appeal both dated 3rd September, 2025 be deemed as filed. That based on the grounds of appeal, he be allowed to file the appeal out of time. 10. As already stated, the respondent has not responded to the application and thus the application is not opposed. 11. Having considered the application, the supporting affidavit, the responses, and the law, this Court is now called upon to determine whether the application meets the threshold for enlargement of time. 12. The first issue of consideration is the length of delay. From the records, the judgment was delivered on 19th May, 2019, the applicant had fourteen days within which to file the notice of appeal i.e., 20th October, 2025. The applicant filed the notice of appeal on 3rd September, 2025, almost 9 years outside the prescribed time. The length of delay is considered on a case-by- case basis. In Muya vs Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya (Petition 4 of 2020) [2022] KESC 37 (KLR) was held that “where there is delay, the Court must interrogate whether the same is justifiable and thus excusable, or not. In order to do that, the Court must interrogate the circumstances of the case.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1158/eng@2026-04-30 2

page 2 of 3

13. Applying the principles to the present case, the applicant has fallen short on all fronts. The unexplained nine years delay in filing the Notice and Record of Appeal is inordinate and inexcusable. Rule 61(1) of this Court’s Rules provides that a person who desires to appeal to the Court shall give notice 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. Nine years is too long a period to proffer an appeal. Even taking into account the fact that the applicant is in prison, there is still no plausible explanation for a nine-year delay. 14. The applicant further avers that the inordinate delay has been caused by his inability to receive his judgment on time, but nine years is too long a period. The notice of appeal ought to have been filed within fourteen days of the date of the decision. Thus, the nine years wait violated Rule 61(1). 15. This Court has consistently held that unexplained delays are fatal. In the instant case, the situation is exacerbated by lack of proper explanation for the delay. Where the delay is not properly explained, this Court has repeatedly declined this excuse. Accordingly, the explanation that the applicant was unable to get his judgment does not hold any water. The applicant in my view, has failed to provide a sufficient and justifiable reason for the inordinate delay, and in any event, litigation must come to an end. 16. Having considered the application, the supporting affidavit and the law, Rule 61(1) of the Court of Appeal Rules, 2022 provides that a person who desires to appeal to the Court shall give notice 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. The judgment the subject of appeal was delivered on 19th May, 2019 while the instant application is dated 3rd September, 2025, which is over nine years after the delivery of the High Court Judgment. The Court cannot countenance the applicant’s indolent. 17. On whether there are chances of success, I have to consider whether there is a single arguable ground that has been raised by the applicant. He avers that the intended appeal is arguable and raises substantive points of law. Having carefully considered the grounds set out in the draft memorandum, in my view, the appeal is arguable. An arguable point is not necessarily one that must succeed, but merely one that is deserving of consideration by the Court. 18. The upshot of this is that the applicant has not persuaded this Court that his application is deserving. This Court, therefore, finds no merit in the Notice of Motion dated 3rd September, 2025. 19. Consequently, for the reasons stated, the notice of motion dated 3rd September, 2025 is dismissed. DATED AND DELIVERED AT NAIROBI THIS 30TH DAY OF APRIL, 2026. DR. J. O. OKELLO …………………….…………. 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/2026/1158/eng@2026-04-30 3

page 3 of 3