Abaa v Republic (Criminal Application E028 of 2026) [2026] KECA 1208 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1208 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT ELDORET CRIMINAL APPLICATION E028 OF 2026 WK KORIR, JA JUNE 26, 2026 (FORMERLY NO. E003 OF 2025) BETWEEN PETER ODHIAMBO ABAA ................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an application for extension of time to appeal against the conviction and sentence of the judgment of the High Court of Kenya at Eldoret (Azangalala, & Karanja, JJ.) dated 16th June 2011 in HCCRA No. 63 of 2008) RULING 1. Peter Odhiambo Abaa has filed the notice of motion dated 22nd September 2025 seeking an extension of time to appeal against a judgment delivered in 2010 in Eldoret High Court Criminal Appeal No. 63 of 2010. His reason for not filing an appeal within the stipulated period is that he relied on his relatives who promised to hire a lawyer for him but could not do so due to financial constraints. 2. The respondent does not oppose the application, and through submissions dated 29th April 2026, Mr. Okaka, learned Principal Prosecution Counsel, argues, while citing Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR in support, that the law does not set any minimum or maximum period of delay. Kimanga vs. Republic [2025] KECA 354 (KLR) is relied upon in support of the proposition that the fact that an applicant is incarcerated is a good reason for enlargement of time for filing an appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1208/eng@2026-06-26 1
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3. In Salat vs. Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR), the Supreme Court identified the factors to be taken into account in an application for enlargement of time as follows: “ This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion: 1. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; 2. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; 3. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; 4. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; 5. Whether there will be any prejudice sufiered by the respondents if the extension is granted; 6. Whether the application has been brought without undue delay; and 7. Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 4. As was stressed by the Supreme Court in Salat vs. Independent Electoral and Boundaries Commission & 7 others (supra), extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it. 5. Here, the applicant has not given any satisfactory explanation as to why it has taken him over sixteen (16) years to bring the instant application. For instance, he has not explained at what point in time he discovered that his relatives were incapable of securing legal services for him. Such an averment would have guided the Court in determining whether the applicant acted promptly upon discovering that the services of the promised counsel were not forthcoming. 6. With utmost respect to counsel for the respondent, the period of delay in Kimanga vs. Republic (supra) was not so inordinate, and that is a distinguishing factor between the current application and the application in the cited decision. 7. In the circumstances of this case, I am not convinced that the delay in filing the application has been satisfactorily explained. I therefore find no merit in the application and dismiss it. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF JUNE 2026. W. KORIR ............................ JUDGE OF APPEAL I certify that this is a True copy of the original Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1208/eng@2026-06-26 2
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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1208/eng@2026-06-26 3
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