Wafula v Republic (Criminal Application E072 of 2024) [2026] KECA 1979 (KLR) (25 September 2026) (Ruling) Neutral citation: [2026] KECA 1979 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT ELDORET CRIMINAL APPLICATION E072 OF 2024 PM GACHOKA, JA SEPTEMBER 25, 2026 BETWEEN ROBERT WANJALA WAFULA .............................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (An application for extension of time to appeal against the Conviction and sentence of the High Court of Kenya at Kitale (L. Kimaru, J.) delivered on 27th July, 2021 in HCRA No. 28 of 2018) RULING 1. By Notice of Motion dated 18th September 2024, the applicant seeks leave of this Court to appeal out of time against the conviction and sentence of the Kitale High Court in HCCRA No. 28 of 2018. The applicant was charged with the oence of delement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act in the Kitale Chief Magistrate’s Court Criminal Case (SO) No. 87 of 2017. He was convicted and sentenced to life imprisonment. Thereafter, the applicant appealed before the Kitale High Court where his appeal was dismissed on conviction and sentence. 2. The applicant’s Notice of Motion is supported by an undated adavit. However, both the grounds and the supporting adavit merely set out the grounds of appeal he intends to raise at the hearing; they do not explain or provide reasons for the delay. 3. In his undated written submissions, the applicant cites several authorities in support of the application. On the issue of delay, he contends that although the four-year delay appears substantial, it was occasioned by his transfer to Naivasha Maximum Prison after his appeal was dismissed. He further states that he became aware of his right to lodge a second appeal only after receiving legal assistance from an organization he refers to as “Justice Defenders.” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1979/eng@2026-09-25 1
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4. The Respondent led written submissions dated 7th September 2026. Mr. Fredrick Rapando, Prosecution Counsel argues that the applicant has not given any reasons for the delay of 3 years and submits that the application should be dismissed. 5. I have carefully considered the application, the supporting adavit and the submissions by the parties. The discretion to extend under rule 4 of the Court of Appeal Rules 2022 is wide and discretionary. However, it must be exercised judiciously. This means that an applicant must give good and cogent reasons for the delay. Though the law does not set the minimum of maximum period of for the delay, the length of the delay is material and must be satisfactorily explained. 6. I agree with the respondent that a three-year delay is inordinate. The applicant was therefore required to provide a satisfactory and plausible explanation, as extension of time is a matter of law, not an act of mercy. 7. Though the applicant did not give any reasons in his supporting adavit, I note that the reasons are in the written submissions. The applicant is a lay man who is currently incarcerated in prison so I will consider the grounds in the interest of justice. The applicant further states that he was transferred from Naivasha Maximum Prison upon the dismissal of his appeal and that he was unable to pursue the ling of the appeal as he lost contact with the court registry. 8. Although the reasons advanced are not entirely satisfactory, they oer a reasonable explanation, particularly because the applicant is incarcerated. I therefore reluctantly accept the applicant’s explanation for the three-year delay. 9. Accordingly, I allow the application and direct the applicant to le a notice of appeal within 15 days. Upon ling, the Deputy Registrar of the High Court at Kitale shall le and serve the record of appeal on the parties within 45 days. 10. Orders accordingly. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. M. GACHOKA C.Arb, FCIArb. ............................................ 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/2026/1979/eng@2026-09-25 2
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