Ezekiel v Republic

3. The applicant further speaks to the fact that during the hearing of his co-accused's appeal on 27th April, 2026, this Court noted that he could not participate in the same, as he had not formally invoked its appellate jurisdiction and accordingly directed him to le an application for extension of time to kick-start the appellate process. He attributes the interval between the issuance of those directions and the ling of the present application to administrative delays encountered in obtaining and extracting the relevant court order as well as the practical challenges of coordinating the ling process while in custody. On that basis, he urges the Court to exercise its discretion in his favour and permit him to pursue his intended appeal. 4. Despite having been duly served with the application, the respondent neither led a replying adavit nor lodged grounds of opposition. Equally, no written submissions were led on its behalf. Accordingly, the application is unopposed. Nonetheless, it is trite that the absence of opposition to the application does not automatically entitle an applicant to the orders sought. The applicant must still satisfy the Court that a sucient basis has been laid for the exercise of the discretionary jurisdiction conferred by Rule 4 of the Court of Appeal Rules. 5. I have duly considered the application, the supporting adavit, together with the written submissions led in support of the application. 6. The principles set out by this Court upon which the judicial discretion under Rule 4 may be exercised were stated in the case of Mwangi v Kenya Airways Ltd [2003] KRL 486: “ 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 of the Rules. For instance, in Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi (Civil Application No. Nai 255 of 1977) (unreported), the Court expressed itself thus: ‘It is now well settled that the decision whether or not to extend the time for appealing 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: rst the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.’” 7. Turning to the circumstances of the present application, the applicant explains that following his conviction and sentence he was not represented by counsel and lacked the nancial wherewithal necessary to institute an appeal within the time stipulated by the Rules. He further attributes the delay to the challenges arising from his incarceration and avers that he remained desirous of appealing throughout. He points out that it was only after this Court, during the hearing of his co-accused's appeal on 27th April, 2026, drew attention to his failure the omission to le a Notice of Appeal that he promptly set in motion the process culminating in the present motion. He has also explained the additional period taken in obtaining the relevant court order and facilitating the ling process from prison. In the peculiar circumstances of this application, and bearing in mind the applicant's custodial status, I am persuaded that the explanation oered for the delay is neither fanciful nor devoid of merit. 8. As regards the arguability of the intended appeal, it is settled that an applicant seeking extension of time is not required to demonstrate that the intended appeal will succeed. It suces if the proposed appeal raises at least one arguable issue deserving consideration by the Court. The draft grounds of appeal annexed to the application indicate a challenge, inter alia, to the learned trial Judge's evaluation of visual identication evidence, the treatment of forensic and circumstantial evidence, and the manner in https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2047/eng@2026-09-29 2

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which the applicant's defence of alibi was considered. The applicant further contends that the evidence on record did not meet the threshold necessary to sustain a conviction for the oence charged. 9. Without expressing any denitive opinion on the merits of those complaints, I am satised that the proposed appeal raises issues that cannot be dismissed as frivolous and which merit interrogation on appeal. 10. With regard to prejudice, there is no material before the Court demonstrating that the respondent would suer any prejudice. In any event, the respondent elected not to challenge the application despite having been aorded an opportunity to do so. Furthermore, it is noteworthy that the applicant's co-accused has already prosecuted his appeal arising from the same proceedings and founded upon substantially similar factual circumstances. In those circumstances, the interests of justice would be better served by allowing the applicant an opportunity to ventilate his grievances before this Court. 11. Having considered the totality of the material placed before me, the explanation tendered for the delay, the arguable nature of the intended appeal, the absence of demonstrable prejudice to the respondent and the overarching duty of the Court to facilitate substantive justice and safeguard the right of appeal, I am satised that the applicant has established sucient cause for the exercise of this Court's discretion under Rule 4 of the Court of Appeal Rules. 12. Consequently, the application allowed. The applicant shall le and serve the Notice of Appeal within fourteen (14) days from the date hereof and shall thereafter lodge and serve the Record of Appeal within sixty (60) days in accordance with the Court of Appeal Rules. Dated and delivered at Kisumu this 29th day of September, 2026. ASIKE-MAKHANDIA ……………….…..……………… 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/2026/2047/eng@2026-09-29 3

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