Kimuma v Republic

down by not acting on his instructions. Nonetheless he was still kin to pursue the appeal more so given that he is left with twenty-ve or so months to serve on his prison term. 4. The respondent did not le any papers in opposition to the application. Instead through Ms. Busienei, learned Assistant Director of Public Prosecutions led written submissions. In those submissions, the respondent acknowledged that the Court's power to extend time is discretionary and that an applicant must furnish a satisfactory explanation for the delay. Counsel further submitted that the reasons for the delay had been explained in the supporting adavit, that the delay was not inordinate, and consequently stated that it did not oppose the application and urged that it be allowed. Earlier on, Mr Anyull, learned counsel for the applicant had similarly led written submissions in support of the application in which he basically reiterated and expounded on the delay, the reasons for the delay and the applicant never ceasing desire to exhaust the appellate process. 5. I have considered the application, the two adavits in support thereof, together with the rival submissions placed before the Court. The principles governing the exercise of the Court's discretion under Rule 4 are now well settled. The discretion conferred by the Rule is wide and unfettered, though it must be exercised judicially and not capriciously. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231, this Court held that in determining whether or not to extend time, the Court considers, among other factors, the length of the delay, the reason for the delay, the possible chances of the intended appeal succeeding, and the degree of prejudice likely to be suered by the respondent if the application is allowed. 6. The Court in Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR further emphasized that the factors identied in Leo Sila Mutiso (supra), are not exhaustive and that the Court is entitled to take into account all relevant circumstances of the case. The Court observed that Rule 4 donates a wide discretionary power which must, however, be exercised on sound judicial principles and in a manner that advances the interests of justice. 7. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR reiterated that extension of time is not a right of a party but an equitable remedy available only to a deserving litigant at the discretion of the Court. The Court further stated that an applicant bears the burden of laying a satisfactory basis for the exercise of the Court's discretion and that each case must be considered on its own peculiar facts and circumstances. 8. Consequently, the explanation oered for the delay, the conduct of the parties, and the demands of substantive justice are relevant considerations in determining whether the Court should intervene. 9. As regards the prospects of the intended appeal, I am alive to the principle that in an application under Rule 4, the Court is not required to undertake a denitive examination of the merits of the intended appeal. It is sucient for the applicant to demonstrate that the intended appeal is arguable and not frivolous. 10. Having considered the Draft Memorandum of Appeal annexed to the application, I note that the applicant intends to challenge, inter alia, the ndings of the High Court on the alleged contradictions and inconsistencies in the prosecution evidence, the treatment of the appellant's defence, including the defence of alibi, the suciency of the evidence supporting the conviction, and the eect of the undisputed land dispute between the appellant and the complainant in the criminal case on the credibility of the prosecution case. 11. The applicant further contends that the conviction was unsafe and that the prosecution failed to prove the oence beyond reasonable doubt. Without expressing any concluded opinion on the merits of those complaints, I am satised that the proposed grounds are not idle or frivolous and raise arguable https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2074/eng@2026-09-29 2

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issues deserving consideration by this Court. The intended appeal cannot therefore be said to be hopeless. 12. Furthermore, In the present application, the applicant attributes the failure to lodge the Notice of Appeal within the prescribed period to the omission of his previous advocate to le the requisite Notice of Appeal following the dismissal of his appeal by the High Court, despite rm instructions to do so by the applicant. Thus, the failure to le the Notice of Appeal in time was beyond his control, as he had left the matter entirely in the hands of his advocates and only subsequently learnt of the omission much later. The applicant therefore contends that he ought not to be penalised for a default attributable to counsel and over which he had no personal control, particularly given his incarceration and his stated intention to challenge the judgment. 13. Having considered those explanations, the material placed before the Court and the constitutional imperative of facilitating access to justice and safeguarding the right of appeal, and the fact that the respondent conceded to the application, I am satised that the applicant has established a sucient basis for the exercise of this Court's discretion under Rule 4 of the Court of Appeal Rules in his favour. 14. Consequently, the application is hereby allowed. The applicant shall le and serve the notice of appeal within fourteen (14) days from the date of this ruling and 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/2026/2074/eng@2026-09-29 3

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