Samson v Republic (Criminal Application E050 of 2026) [2026] KECA 2093 (KLR) (29 September 2026) (Ruling) Neutral citation: [2026] KECA 2093 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CRIMINAL APPLICATION E050 OF 2026 MS ASIKE-MAKHANDIA, JA SEPTEMBER 29, 2026 BETWEEN ROBRT MAKORI SAMSON .................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an application for extension of time to lodge and serve a Notice of Appeal and Record of Appeal out of time against the Judgment of the High Court of Kenya at Nyamira, dated 28th February, 2025 in HCCRA NO. EO65 OF 2024) RULING 1. The Motion before Court for determination has the principal prayer that leave to le an appeal out of time against the judgment of the High Court in HCCRA No. E065 of 2024 at Nyamira be granted unto Robert Makori Samson, “the applicant”. The application is expressed to be brought pursuant to Rule 4 of the Court of Appeal Rules, 2022. The applicant, was charged before the Senior Resident Magistrate's Court at Keroka in Criminal Case No. E091 of 2023 with the oence of delement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. Upon conviction, he was sentenced to life imprisonment. Thereafter, he lodged an appeal to the High Court of Kenya at Nyamira being HCCRA No. E065 of 2024, which was heard and subsequently dismissed in its entirety. 2. The application is supported by the adavit of the applicant in which he deposes that he desires to challenge the decision of the rst appellate court before this Court but was unable to do so within the prescribed period. He explains that he had relied on his relatives to engage a lawyer on his behalf but those eorts did not materialize, thereby occasioning the delay in bringing the present application. He consequently seeks enlargement of time to enable him pursue an appeal before this Court. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2093/eng@2026-09-29 1
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3. The respondent did not le a replying adavit but nevertheless, led written submissions through Mr. Joshua Jamsumbah, Assistant Director of Public Prosecutions. The respondent acknowledged that the application was brought under Rule 4 of the Court of Appeal Rules, 2022, which grants the Court wide and unfettered discretion to extend time. The respondent noted that the applicant had been convicted of delement and sentenced to life imprisonment and submitted that no prejudice would be occasioned to the prosecution if the extension sought were granted. Consequently, the respondent indicated that it did not oppose the application notwithstanding the applicant's failure to annex a draft memorandum of appeal or proceedings from the two courts below. 4. I have considered the application, the supporting adavit and the respondent's written submissions. The application seeks the exercise of this Court's discretionary jurisdiction under Rule 4 of the Court of Appeal Rules. The applicant attributes the delay in lodging the intended appeal to his unsuccessful attempts to secure legal representation through relatives. He further urges the Court to aord him an opportunity to ventilate his intended appeal. 5. The Supreme Court of Kenya pronounced itself on the question of extension of time in the case of Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, thus: “ the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 6. In applying the above principles and alive to the fact that, as in other matters of judicial discretion, so too in the case of the discretion conferred upon this Court by Rule 4 of the Court of Appeal Rules, it would be dicult, and indeed inexpedient, to formulate inexible rules governing the exercise of that discretion. As observed by Bowen, L.J. in Gardner vs. Jay [1885] 29 Ch. D 50: “ that discretion, like other judicial discretion, must be exercised according to common sense and according to justice.” 7. The Court must therefore consider the peculiar circumstances of each case and determine whether the interests of justice warrant the enlargement of time sought. 8. Taking into account the explanation tendered by the applicant, the nature of the sentence imposed, the respondent's concession to the application, and bearing in mind the need to facilitate access to justice and accord the applicant an opportunity to pursue an intended appeal, I am persuaded that this is a proper case for the exercise of the Court's discretion in favour of the applicant. Consequently, the Notice of Motion dated 15th July, 2026, is hereby allowed. 9. The applicant shall le and serve his Notice of Appeal within fourteen (14) days of the date hereof and thereafter lodge and serve the Record of Appeal within sixty (60) days. 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 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2093/eng@2026-09-29 2
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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2093/eng@2026-09-29 3
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