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Court of AppealAllowedCriminal Application (Extension of Time)

Shem v Republic (Criminal Application E048 of 2025) [2026] KECA 44 (KLR)

Court of Appeal of Kenya
27 January 2026
LKL. Kimaru
362 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a life-sentence prisoner more time to appeal because delayed court documents—not neglect—caused him to miss the deadline.

What this practically means

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Executive summary

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The applicant, Juma Shem, was convicted of gang rape contrary to section 10 of the Sexual Offences Act by the Kimilili Magistrate's Court in Criminal Case No. 1295 of 2009 and sentenced to life imprisonment. His first appeal to the High Court at Bungoma in HCCRA No. 11 of 2015 failed. He then applied to the Court of Appeal at Kisumu, under Rule 4 of the Court of Appeal Rules, for an extension of time to lodge a notice of appeal out of time in preparation for a second appeal. The applicant explained that the delay arose because certified typed copies of the High Court proceedings and judgment were not availed to him, and by the time he obtained them the period for filing the notice of appeal had expired. The respondent did not oppose the application. The Court, per L. Kimaru, JA, held that Rule 4 confers an unfettered discretion to extend time, and found the reason for delay excusable, taking particular account of the fact that the applicant was acting in person and incarcerated, and thus unable to physically attend Court to follow up the typing and certification of the proceedings. The application was allowed, with the applicant granted leave to lodge the notice of appeal out of time, to be filed and served within fourteen days. No costs order was made. The decision is procedural and interlocutory; it does not disturb either conviction or the decision of the High Court below.

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 should be granted an extension of time to lodge a notice of appeal out of time

Key legal issues

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01

Whether the delay in lodging the notice of appeal was excusable

Holding

The delay was excusable because the applicant, an incarcerated person acting in person, was not availed certified typed copies of the proceedings and judgment of the High Court in time to file the notice of appeal.

Reasoning

The applicant explained that the lapse of time resulted from the failure of the Superior Court to supply certified copies of the proceedings and judgment. The Court found this reason excusable given that the applicant is acting in person and is incarcerated, and cannot physically access the Court to follow up the typing and certification of the proceedings. The discretion under Rule 4 was accordingly exercised in his favour.

p. 1

Legal principles established

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  • Rule 4 of the Court of Appeal Rules confers on the Court an unfettered discretion to extend time for any step to be taken within a period stipulated under the Rules, and a reasonable explanation for the delay - such as non-availability of certified proceedings for an incarcerated person acting in person - justifies its exercise.

Court orders

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  1. 1.The application for extension of time is allowed
  2. 2.The applicant is granted extension of time to lodge the notice of appeal out of time
  3. 3.The notice of appeal shall be filed and served within fourteen (14) days of the date of the ruling

The bench

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

LK
majority

Wrote the judgment

On appeal from
High Court of Kenya at Bungoma
HCCRA No. 11 of 2015
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

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.

Rule 4 of the Court of Appeal Rules grants this Court unfettered discretion to extend time for any steps to be taken within the period stipulated under the Rules.
p. 1Discretion to extend time
The reason given is excusable noting that the applicant is acting in person and is currently incarcerated and cannot physically access the Court to follow up the typing and certification of the proceedings.
p. 1Excusable delay by an incarcerated litigant in person
In the premises therefore, the application has merit and is hereby allowed. The applicant is hereby granted extension of time to lodge the notice of appeal out of time.
p. 2Final orders
The notice of appeal shall be filed and served within fourteen (14) days of today’s date.
p. 2Direction on filing and service

Issues in the judgment

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minor

The judgment does not state the number of the present application, the date the High Court appeal was decided, or the dates of the relevant periods, limiting citation detail.

minor

The document is signed by a single Judge of Appeal (L. Kimaru), so it appears to be a decision of a single judge rather than a full bench; this may affect its characterisation as a binding precedent of the Court.

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, "Shem v Republic (Criminal Application E048 of 2025) [2026] KECA 44 (KLR)", Case Analysis (2026). Criminal Application (Extension of Time). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/44/eng@2026-01-27

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