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Court of AppealAllowedNot stated in the judgment

HOM v Republic (Criminal Application E050 of 2025) [2026] KECA 268 (KLR)

Court of Appeal of Kenya
11 February 2026
LKL. Kimaru
392 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a 40-year inmate to file his second appeal late, ruling his reasons for the delay were excusable.

What this practically means

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Executive summary

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The applicant, HOM, was convicted of incest contrary to section 20(1) of the Sexual Offences Act and sentenced to forty years' imprisonment. His first appeal to the High Court was dismissed on both conviction and sentence on 15 July 2024. He then sought leave, by notice of motion under Rule 4 of the Court of Appeal Rules, to file a second appeal to the Court of Appeal out of time. He explained the delay on two grounds: he was not made aware when the High Court judgment was delivered, and his advocate was unable to access the superior court's file in time to prepare and lodge the appeal. The application was unopposed. The Court, sitting at Kisumu (Kimaru, JA), reiterated that under Rule 4 it has unfettered discretion whether or not to extend time. Finding the reasons for the delay excusable and the period of delay not inordinate, and noting that the applicant should be given a chance to ventilate his final appeal, the Court allowed the application. It granted leave to file the appeal out of time and directed that the notice of appeal be filed and served within fourteen days of the date of the ruling, delivered on 11 February 2026. No costs order was made. This was an interlocutory extension-of-time ruling, not a determination of the merits of the intended second appeal.

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 leave to appeal out of time against the High Court decision dismissing his first appeal
  2. 2.Whether the reasons for the delay in filing the notice of appeal were excusable

Key legal issues

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01

Extension of time to file a notice of appeal

Holding

The Court exercised its discretion under Rule 4 in the applicant's favour because the reasons given for the delay were excusable and the delay was not inordinate

Reasoning

The applicant explained that he was not made aware when the High Court judgment was delivered, and that his advocate could not access the superior court's file in time to prepare and lodge the appeal. The application was unopposed. The court found the reasons excusable, the delay not inordinate, and held that the applicant should be given a chance to ventilate his final appeal as of right before the Court of Appeal.

p. 2

Legal principles established

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  • Under Rule 4 of the Court of Appeal Rules, the Court has unfettered discretion whether or not to allow an application for extension of time for any steps to be taken within the time prescribed by the Rules

Court orders

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  1. 1.The application for leave to file appeal out of time is allowed
  2. 2.The applicant is granted leave to file 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
Not stated in the judgment
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (discretion to extend time)

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.

Under Rule 4 of the Court of Appeal Rules, this Court has unfettered discretion whether or not to allow an application for extension of time for any steps to be taken within the time prescribed by the Rules.
p. 1Discretion under Rule 4
The reasons given by the appellant are excusable. The period of delay was not inordinate. The applicant should be given a chance to ventilate his final appeal before this Court.
p. 2Excusable delay
The application has merit. It is hereby allowed. The applicant is hereby granted leave to file appeal out of time. The notice of appeal shall be filed and served within fourteen (14) days of today’s date.
p. 2Final orders

Issues in the judgment

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minor

The coram lists the judge as 'L. KIMARU ... JUDGE OF APPEAL', but the substance of the matter is a second appeal against a conviction and sentence; the judgment itself does not state the case number, neutral citation, or the High Court case number from which the appeal arises

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, "HOM v Republic (Criminal Application E050 of 2025) [2026] KECA 268 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/268/eng@2026-02-11

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