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Court of AppealDismissedNot stated in the judgment

Gathano v Republic (Criminal Application E193 of 2024) [2024] KECA 1727 (KLR)

Court of Appeal of Kenya
4 December 2024
415 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused a prisoner's bid to appeal four years late, holding that lack of money does not excuse missing the 14-day notice deadline.

What this practically means

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Executive summary

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This is a single-judge in-chambers ruling of the Court of Appeal at Nakuru delivered by M. Warsame, JA, on 4th December 2024, determining an undated application by a person acting in person for extension of time to file an appeal out of time. The applicant, convicted of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, sought to challenge the High Court's decision of 26th November 2020 by Gikonyo, J., which upheld his conviction and enhanced his sentence from 15 years to 30 years. He offered two reasons for a delay of about four years: non-supply of the High Court judgment, and reliance on relatives facing financial constraints in obtaining legal representation. The respondent did not oppose the application, conceding that although the delay was inordinate, the lengthy sentence merited allowing the appeal to be ventilated. Applying the dicta in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, the court held that delay must be satisfactorily explained. It found the explanation wanting: a sentenced person incurs no cost in lodging a notice of appeal within 14 days, and the claim of non-supply of the judgment remained unsubstantiated. The judge declined to exercise discretion in the applicant's favour, dismissed the application and made no order as to costs. The applicant remains unable to pursue his intended appeal against conviction and the enhanced sentence.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant's delay of about four years in seeking to appeal has been satisfactorily explained so as to warrant extension of time

Key legal issues

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01

Whether the approximately four-year delay in seeking leave to appeal out of time was satisfactorily explained

Holding

The delay was inordinate and unexplained; the reasons proffered (non-supply of the judgment and relatives' financial constraints) failed because a prisoner need not pay to lodge a notice of appeal within 14 days and the non-supply claim was unsubstantiated

Reasoning

The court applied the Chemaringo test that delay must be satisfactorily explained. It held that a sentenced person faces no costs in filing a notice of appeal, which must simply be given within 14 days, so lack of funds for legal representation does not excuse inaction. The claim that the High Court judgment was not supplied remained unsubstantiated. Discretion was therefore declined.

p. 2

Legal principles established

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  • There is no fixed minimum or maximum period of delay for extension of time; any delay must be satisfactorily explained, and a plausible and satisfactory explanation is the key to the exercise of the court's discretion

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority

Wrote the judgment

On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Inherent discretionary jurisdiction of the Court of Appeal to extend time for filing an appeal (rule not named in the judgment)

Relief refused

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Extension of time to file an appeal out of time against conviction for defilement and the enhanced 30-year sentence

The delay of about four years was inordinate and unsatisfactorily explained; the claim that the judgment was not supplied was unsubstantiated and filing a notice of appeal as a sentenced prisoner carries no cost

p. 2

Costs

No order as to costs - each party to bear their own costs (dismissed with no order as to costs)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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 the delay is the key that unlocks the court's fiow of discretionary favour.
p. 1Test for extension of time - explanation of delay
there are no costs associated with filing a notice of appeal by a person who is serving a sentence. All that is required is to give notice of the intention to appeal within 14 days.
p. 2Imprisoned appellants - notice of appeal attracts no cost
Consequently, I find the delay inordinate and decline to exercise my discretion in favour of the applicant and dismiss the application with no order as to costs.
p. 2Final orders - application dismissed

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gathano v Republic (Criminal Application E193 of 2024) [2024] KECA 1727 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1727/eng@2024-12-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.