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Court of AppealAllowedNot stated in the judgment (arising from Bungoma Chief Magistrate's Court CR. Case No. 746 of 2018)· [2026] KECA 59 (KLR)

Kitai alias Cheparakach v Republic (Criminal Application E055 of 2025) [2026] KECA 59 (KLR)

Court of Appeal of Kenya

28 January 2026

LKL. KIMARU

286 words in judgment

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The bottom line

Kenya's Court of Appeal allowed a convicted man extra time to appeal because he received court documents late, keeping his challenge alive.

What this practically means

Executive summary

This is a short single-judge ruling of the Court of Appeal at Kisumu delivered by L. Kimaru, JA, on 28 January 2026, on an application for leave to appeal out of time. The applicant had been convicted of robbery with violence contrary to section 296(2) of the Penal Code by the Bungoma Chief Magistrate's Court in CR. Case No. 746 of 2018 and sentenced to twenty-five years' imprisonment. His first appeal to the High Court against conviction was dismissed, but the custodial sentence was enhanced to forty years in a decision delivered on 27 June 2025. Aggrieved, the applicant sought to appeal to the Court of Appeal but filed outside the prescribed period, explaining that he had not been availed certified typed copies of the proceedings and judgment in time. The application was unopposed by the respondent. The Court invoked Rule 4 of the Court of Appeal Rules, which grants an unfettered discretion to extend time, found the explanation for the delay satisfactory, and exercised its discretion in the applicant's favour. It granted leave to appeal out of time and directed that the notice of appeal be filed and served within fourteen days. No costs order was made. The decision does not disturb the High Court's verdict; it merely opens the gate to a second appeal, which remains to be heard on its merits.

Key legal issues

Whether the applicant gave a satisfactory explanation for the delay in lodging the appeal

Holding

The Court found the explanation satisfactory: the applicant was not availed certified typed copies of the proceedings and judgment in time, and the application was unopposed, so the discretion under Rule 4 was exercised in his favour.

Reasoning

The Court noted the applicant's appeal to the High Court had been dismissed and his sentence enhanced to forty years, giving him a live desire to appeal. The delay was attributable to the late provision of certified proceedings and judgment, which is a recognized legitimate reason. The respondent did not oppose the application. On these facts the unfettered Rule 4 discretion favoured extension, with a 14-day window to file the notice of appeal.

p. 1

Legal principles established

Rule 4 of the Court of Appeal Rules confers an unfettered discretion on the Court to extend time for doing any act prescribed by the Rules, and a satisfactory explanation for the delay will ordinarily move the Court to exercise that discretion in an applicant's favour.

Court orders

1.The applicant is granted leave to appeal out of time
2.The applicant shall file and serve the notice of appeal within fourteen (14) days of the date of the ruling

Authorities

Legislation

Penal Codesection 296(2)
Court of Appeal RulesRule 4

On appeal from: High Court of Kenya; null
Jurisdiction invoked: Rule 4 of the Court of Appeal Rules (discretion to extend time)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kitai alias Cheparakach v Republic (Criminal Application E055 of 2025) [2026] KECA 59 (KLR)", Case Analysis (2026). Not stated in the judgment (arising from Bungoma Chief Magistrate's Court CR. Case No. 746 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/59/eng@2026-01-28

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