Elema v Republic (Miscellaneous Application E002 of 2025) [2026] KEHC 487 (KLR) (22 January 2026) (Ruling) Neutral citation: [2026] KEHC 487 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT ISIOLO MISCELLANEOUS APPLICATION E002 OF 2025 SC CHIRCHIR, J JANUARY 22, 2026 BETWEEN ALI SORA ELEMA ................................................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT RULING 1. The Applicant herein seeks for enlargement of time to file a Notice of Appeal against the High Court decision to dismiss his Appeal, in Meru High Court Criminal Appeal No. E005 of 2023. 2. He states that he prepared a Notice of Appeal within the stipulated period of 14 days, but it was not filed due to what he calls a “filing problem between documentation office and the Court Registry”. 3. The Respondent opposes the Application. In his ground of opposition dated 29/07/2025, the prosecution counsel states that the Application is res-judicata; that the Applicant has misapprehended the relevant provisions of the law; and that there is no Notice of intended Appeal that has been filed before the High Court. 4. Enlargement of time to Appeal is at the discretion of the court and the conditions which the Applicant must meet has been a subject of numerous past decisions of the superior courts. The conditions which an Applicant must meet are: satisfactory explanation or reason for the delay, that the extension would not occasion prejudice to the opposing side, and, that the Application has been brought without undue delay. However satisfactory and plausible explanation is a key consideration . In the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR) the court of Appeal held: “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 flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.’” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/487/eng@2026-01-22 1
page 1 of 2
5. In the present case the explanation given is that there was a breakdown of communication between the Prison, where the Applicant is currently held, and the Court’s registry, which resulted in the Notice of Appeal not being filed on time. 6. The Applicant has not bothered to expound on the alleged breakdown of communication. In the Affidavit in support, the Applicant comes out as being indolent or evasive. The explanation is insufficient. Thus, there is no sufficient material placed before court so as to assist the court in exercising its discretion in favour of the Applicant. 7. The delay went on for about a year. The High Court Judgment was delivered on 01/7/2024 and in a document which appears to be a draft Notice of Appeal, is a note made to the effect that the Applicant got the outcome of the Appeal on 1st July, 2024, which is the same date of delivery of the said Judgment. The pertinent question is, what was happening for that one whole year? Was the Applicant waiting for the Appeal number as he put it, for that period? . It is not plausible. And if that was the case, then the Applicant was being indolent. 8. Extension of time to file an Appeal is an equitable remedy and equity cannot come to the aid of the indolent, as equity grants no audience to such indolence. 9. Another consideration is whether the application for enlargement of time has been brought without undue delay. The Application was filed in July, 2025, being one year after the delivery of Judgment. The delay was inordinate, and devoid of any explanation as aforesaid. 10. The Respondent has argued that the Application is res-judicata. However, there is no evidence that has been placed before court, showing that the Applicant had even presented a similar Application before any other court. 11. Nevertheless, the Applicant has failed to plausibly and satisfactorily explained to the court the reasons for the delay. Consequently, the Application fails, and it is hereby dismissed. DATED, SIGNED AND DELIVERED AT ISIOLO, THIS 22ND DAY OF JANUARY, 2026. S.CHIRCHIR JUDGE In the Presence of:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/487/eng@2026-01-22 2
page 2 of 2