keca-2026-02030

2. Being aggrieved by the said decision, the Applicant has filed the instant Notice of Motion application expressed to be brought under Rule 4 of the Court of Appeal Rules (now Rule 84(1) of the Court of Appeal Rules, 2022), and Section 3A of the Appellate Jurisdiction Act. He seeks the following orders: (a) THAT, this Honorable Court be pleased to grant leave to the Applicant to file his Appeal out of time. (b) THAT the Appeal already filed be deemed as duly filed upon granting of prayer (a) above. 3. The application is supported by the Supporting Affidavit sworn by the Applicant on even date. In the affidavit, the Applicant depones that after his conviction and sentence, he did not appeal on time because he was not supplied with the original trial court’s records and the Judgment to enable him to appeal on time. He further depones that he had the intention to appeal and that the intended appeal has high chances of success. He annexed a draft Memorandum of Appeal raising four grounds, essentially challenging the conviction and sentence on the ground that the trial Judge failed to consider the circumstances Page 2 of 6

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of the offence, which invited a lesser sentence, and that he has undergone rehabilitation. 4. I have considered the application, the affidavit in support, and the annexed documents. The only issue for determination is whether the Applicant has satisfied the Court to exercise its discretion in his favour and extend time for filing the appeal. 5. The principles governing the extension of time are now settled. In Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, the Supreme Court held that extension of time is not a right of a party but an equitable remedy that is only available to a deserving litigant at the discretion of the Court. The Court identified, among relevant considerations: a. the length of the delay; b. the reason for the delay; c. the degree of prejudice likely to be suffered by the respondent; and d. whether the intended appeal is arguable. 6. The Judgment of the High Court was delivered on 4 th October 2018. The current application Page 3 of 6 was filed in 2024,

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approximately Page 4 of 6

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six (6) years after the delivery of the judgment. This constitutes an inordinate delay. 7. The Applicant states that he was not supplied with the original trial court’s records and the Judgment. It is a common occurrence that prisoners, acting in person, face challenges in accessing proceedings and judgments to prosecute their appeals. While the length of delay is significant, the Court takes judicial notice of the constraints faced by litigants in custody, particularly those who are not represented by counsel. The explanation given, though not entirely satisfactory for a delay of six years, is not an afterthought. The Applicant appears to have been persistent in seeking to appeal, as evidenced by the documents annexed. 8. I have perused the Notice of Appeal and the Memorandum of Appeal filed herein and note a discrepancy. While the Notice of Appeal states that the appeal is against the sentence only, the Memorandum of Appeal explicitly challenges the conviction and prays for the conviction to be quashed. 9. In the interest of substantive justice, and considering that Page 5 of 6

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the Applicant is acting in person and has raised arguable grounds Page 6 of 6

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against the conviction in the Memorandum, I am satisfied that the Applicant intended to appeal against the entire Judgment. I therefore exercise my discretion under Rule 4 of the Court of Appeal Rules to deem the Notice of Appeal as filed against both conviction and sentence, to align it with the Memorandum of Appeal. 10. As regards the chances of success, I have perused the draft Memorandum of Appeal. The Applicant argues that the learned Judge erred by failing to note that the circumstances of the crime invited a lesser sentence. He also pleads rehabilitation. These are arguable points which cannot be dismissed outright at this interlocutory stage. It is in the interest of justice that the Applicant be allowed to ventilate these arguments before this Court. 11. As to prejudice, the Respondent has not filed any submissions or affidavit to oppose the application. In criminal matters, the State generally suffers no prejudice by the delay, other than the fact that witnesses' memories may fade. However, given that the appeal is primarily on matters of law and the Page 7 of 6

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severity of the sentence, I am satisfied that the Respondent will not be unduly prejudiced. Page 8 of 6

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12. In the premises, and weighing all factors, I am inclined to exercise my discretion in favour of the Applicant as denying the Applicant a hearing on technicalities of time, considering his circumstances as a prisoner and the arguable nature of his grounds, would lead to a miscarriage of justice. 13. From the foregoing, I make the following orders: (i) The Applicant’s Notice of Appeal and Memorandum of Appeal, which are both undated, are hereby deemed as duly filed. (ii) The Deputy Registrar is hereby directed facilitate the filing of the record of appeal. DATED AND DELIVERED AT KAKAMEGA THIS 22ND DAY OF MAY, 2026. R. NGETICH ……………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 9 of 6 to

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