Kirianki v Republic

not candidly evaluated, and that the intended appeal has arguable and triable issues with very high chances of success. 5. When the application came before Court for hearing, I noted that there were no submissions led by the respondent. 6. I have considered the application, the supporting adavit and the applicant’s submissions. The application seeks a grant of orders for extension of time to le the Notice of Appeal out of time. Rule 55(1) of the Court of Appeal Rules of 2022 clothes the single Judge with the mandate to determine the application for extension of time and Section 349 of the Criminal Procedure Code provides that the Court may exercise this mandate for good cause: “ An appeal shall be entered within fourteen days of the date of the order or sentence appealed against: ‘Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satised that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor.” 7. The proviso to the foregoing section allows this Court to consider an application seeking the ling of an appeal out of time, if the applicant demonstrates that the inability to le the appeal was caused by late supply of a copy of the judgment or order appealed against. In this case the applicant avers that the delay in ling the appeal is not inordinate. 8. In the exercise of the discretion under rule 4, the Court takes into account various factors, as demonstrated in Paul Wanjohi Methane v Duncan Gichane Mathenge [2013] eKLR where the Court stated that: “ The discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion I ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance.” 9. As stated by the Apex Court in Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 others, Supreme Court of Kenya Application No. 16 of 2014, 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 and the party who seeks the extension of time has the burden of laying a basis to the satisfaction of the court. The discretion is to be exercised on a case by case basis. 10. Although there is no minimum or maximum period of delay prescribed by law, the applicant bears the burden of satisfactorily explaining that there is delay and that the cause of that delay is reasonable or excusable. (See- Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR). 11. The Applicant herein indicates that there were diculties in obtaining the record for appeal purposes, and that he is a pauper and in prison. Consequently, I nd that the reason stated above is reasonable and the delay is not inordinate. The cause of the delay is found to be excusable. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1741/eng@2026-09-25 2

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12. On the possibility of the intended appeal succeeding, the Court will only refuse leave if satised that the applicant has no realistic prospects of succeeding on the appeal. (See Machira t/a Machira & Company Advocates V Mwangi & Anor [2002]). The applicant’s grounds of the intended appeal are inter alia: that the learned Judge erred in upholding the conviction and sentence on evidence of identication that was inconsistent, uncorroborated and not proved; that the ingredients of the oence of delement were not proved (age, penetration and identication); and, that his unsworn defence which was supported by eye witnesses was not candidly evaluated. 13. In my view, these are not idle issues. Bearing in mind that at this point, I do not have to determine the issues raised with nality, I nd that they deserve to be given a chance for ventilation on appeal. I nd no basis to hold that they will suer any prejudice if the application is allowed. Consequently, the application dated 10th July 2026, is allowed as prayed. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER, 2026. L. ACHODE ……………………… 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/2026/1741/eng@2026-09-25 3

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