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Court of AppealAllowedCriminal Appeal (not separately numbered in judgment)

Mohamed v Republic (Criminal Appeal E110 of 2023) [2025] KECA 927 (KLR)

Court of Appeal of Kenya
7 March 2025
AMA. K. MurgorKLK. I. LaibutaGNG. W. Ngenye-Macharia
1,703 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that prisoners can appeal late when courts fail to supply judgments or the prison system blocks access.

What this practically means

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Executive summary

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The appellant, Omar Mohamed, was convicted of defilement by the Principal Magistrate's Court at Hola and sentenced to life imprisonment on 10th April 2021. Nearly two and a half years later, on 16th September 2023, he sought leave to appeal out of time, explaining that he had requested the trial court's judgment but it was never supplied to him, and that his transfer from Malindi Prison to Manyani Maximum Prison compounded his difficulty in accessing the court registry. The High Court at Garsen (S. M. Githinji, J.) declined the application on 1st November 2023, finding the two-year delay insufficiently explained. On appeal, the Court of Appeal at Mombasa (Murgor, Laibuta and Ngenye-Macharia, JJ.A.) framed a single issue: whether the learned Judge acted judiciously in exercising his discretion. Although prosecution counsel conceded the appeal, the Court independently reviewed the settled principles governing extension of time, drawing on the proviso to section 349 of the Criminal Procedure Code, the Supreme Court's decisions in Chemaringo and Salat, and Article 159(2)(d) of the Constitution. The Court held that the delay was adequately explained by the non-supply of the judgment, the appellant's transfer to a prison outside the trial court's jurisdiction and his unrepresented status - all factors the Judge ought to have considered. The appeal was allowed, the High Court's ruling and orders were set aside, and the appellant was granted thirty days from supply of the judgment to lodge his intended appeal. No costs order was recorded.

Questions the Court framed

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

  1. 1.whether, in exercise of his discretion, the learned Judge acted judiciously

Key legal issues

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01

Whether the High Court judge acted judiciously in declining to extend time for lodging an appeal

Holding

The judge failed to take into account relevant factors - the appellant's request for the judgment which was never supplied, his transfer to a prison outside the trial court's jurisdiction, and his lack of representation - and thus misdirected himself in declining the extension.

Reasoning

The Court rehearsed the settled test for extension of time from section 349 of the Criminal Procedure Code and the Salat conditions. Though prosecution counsel conceded, the Court independently examined whether the discretion was exercised judiciously. It found the two-year delay explained by the non-supply of the judgment, the appellant's prison transfer and his unrepresented status - factors the judge ought to have considered - and therefore found the refusal to have been an erroneous exercise of discretion.

p. 4

Legal principles established

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  • Grant of leave to lodge an appeal out of time is discretionary; the applicant must show the delay was not unreasonable, give sufficient reasons for the delay, and show no prejudice to the respondent, and the judge must take into account factors such as failure to supply the judgment, the applicant's imprisonment and transfer, and lack of representation.
  • Where the delay in lodging an appeal is caused by the appellant's inability to obtain a copy of the judgment within a reasonable time of applying, the court shall admit the appeal under the proviso to section 349 of the Criminal Procedure Code.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling and orders of the High Court of Kenya at Garsen (S. M. Githinji, J.) dated 1st November 2023 are set aside
  3. 3.Substituted therefor is an order that the appellant do lodge his intended appeal within thirty (30) days from the date of supply to him of the impugned judgment

The bench

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

AM
majority
KL
majority
GN
majority
On appeal from
High Court of Kenya at Garsen
Chamber Summons filed 16th September 2023 (appeal from Sexual Offence Criminal Case No. 13 of 2020, Principal Magistrate's Court at Hola)
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal under the Criminal Procedure Code against a decision of the High Court declining extension of time to appeal, per the proviso to section 349 of the Criminal Procedure Code

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.

we find that the appeal has merit and is hereby allowed. Consequently, the ruling and orders of the High Court of Kenya at Garsen (S. M. Githinji, J.) dated 1st November 2023 are hereby set aside and substituted for an order that the appellant do lodge his intended appeal within thirty (30) days from the date of supply to him of the impugned judgment.
p. 4Final orders - reversal of refusal to extend time
the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained.
p. 3Extension of time - no fixed limitation on delay
All these are factors that the learned Judge ought to have taken into consideration.
p. 4Judicious exercise of discretion - relevant factors

Issues in the judgment

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minor

The judgment does not state the number of the appeal before the Court of Appeal, nor does it record any order as to costs.

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, "Mohamed v Republic (Criminal Appeal E110 of 2023) [2025] KECA 927 (KLR)", Case Analysis (2025). Criminal Appeal (not separately numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/927/eng@2025-03-07

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