Repubblic v Chege & 3 others (Criminal Application E001 of 2025) [2026] KECA 889 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let the DPP revive the Monson case because a two-year delay was never properly explained.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has jurisdiction to extend time for filing an application for certification under Article 163(4)(b) of the Constitution
- 2.Whether the delay in bringing the present application has been satisfactorily explained and whether the interests of justice warrant the exercise of the Court's discretion in favour of the Applicant
Key legal issues
#Jurisdiction to extend time for certification applications
The Court holds it has jurisdiction to determine certification applications under Article 163(4)(b) and, in appropriate cases, to extend time for filing them.
Article 163(4)(b) confers jurisdiction to certify matters of general public importance for the Supreme Court. Following Mogere v Telkom Kenya Limited, Embassy of Sweden, Nairobi v Kusewa and Odiara v Falcon Properties, the Court concluded the extension power exists provided the applicant demonstrates sufficient cause.
Sufficiency of explanation for the delay
A delay of over two years was not satisfactorily explained; reliance on the delay in supply of typed proceedings fails where the bespeaking letter was not served on the respondents.
The proviso to Rule 84(1) excludes time for preparation of proceedings only where the application for the copy was in writing and served on the respondent. Although the Applicant requested proceedings on 11th May 2023, the letter was not copied to or served on the Respondents, so the entire two-year delay required explanation. Apart from the unparticularised withdrawal of an earlier application, no material explained the delay.
Chances of success and general public importance
The draft petition's grounds turn on the facts of the case and do not raise issues of general public importance, negating any likelihood of success.
Applying the Fakir Mohammed factors, the Court assessed whether the intended appeal to the Supreme Court had prospects of success. It found the questions raised concerning police officers' obligations towards arrested persons under Article 49 were essentially factual, determined by the Court below, and nothing new or novel for the Supreme Court.
Prejudice and interests of justice
Extending time would be prejudicial to the respondents given the nearly decade-long litigation and the lapse of time since the judgment.
The Respondents had been acquitted after a full appellate revaluation of evidence and law. Given the significant lapse of time between the judgment and the application, the Court weighed prejudice against the Respondents and the effect of the delay, concluding the interests of justice did not favour extension.
Legal principles established
#- The Court of Appeal has jurisdiction, in appropriate cases under Article 163(4)(b), to extend time for filing an application for certification to the Supreme Court where sufficient cause is shown.
- An applicant cannot rely on the proviso to Rule 84(1) to exclude the time taken for preparation of typed proceedings unless the letter bespeaking proceedings was in writing and served on the respondent.
Court orders
#- 1.The Notice of Motion dated 4th November 2025 is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 163(4)(b) of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 4 of the Court of Appeal Rules, 2022
Relief refused
#Extension of time to file an application for certification of an intended appeal to the Supreme Court
The delay of over two years was not satisfactorily explained; the request for typed proceedings was not served on the Respondents, disqualifying the Applicant from the Rule 84 proviso, and the draft petition's grounds turned on facts rather than matters of general public importance
Declaration that the intended appeal involves a matter of general public importance and timelines for filing the certification application
Consequential on dismissal of the motion; the questions raised were found to turn on the facts of the case
Costs
No costs order appears in the judgment; the judgment ends with 'It is so ordered.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In sum, the Applicant having failed to satisfy the requirements of rule 4, I decline to exercise my discretion to extend time for lodging of the Applicant's memorandum, grounds and record of appeal. The Notice of Motion dated 4th November 2025 is devoid of merit and is accordingly dismissed. It is so ordered.
In appropriate cases, it may also extend time within which such an application is to be filed, provided that the applicant demonstrates suficient cause.
in order to benefit from the proviso to Rule 84, which allows for the time for preparation of the proceedings to be excluded from computation of the period of delay, it was incumbent upon the Applicant to file and serve the letter bespeaking the proceedings on the Respondents.
The period of delay, the reason for the delay, (possible) the chances of the appeal succeeding if the application is granted, the degree of prejudice to the respondent if the application is granted, the efiect of delay on public administration, the importance of compliance with time limits, the resources of the parties, whether the matter raises issues of public importance-are all relevant but not exhaustive factor.
Issues in the judgment
#Internal inconsistency on the date of the Court of Appeal acquittal: the record shows the judgment was delivered on 28th April 2023, yet other passages state different dates
Paragraph numbering repeats (two paragraphs numbered 5) and one paragraph is omitted (no paragraph 21), indicating typographical irregularities in the official text
The judgment refers to explaining the delay in filing the 'Record of appeal' although the motion concerns an application for certification to the Supreme Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Repubblic v Chege & 3 others (Criminal Application E001 of 2025) [2026] KECA 889 (KLR)", Case Analysis (2026). Notice of Motion dated 4th November 2025 (Criminal Application; arising from Court of Appeal Criminal Appeals Nos. 23, 34 and 35 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/889/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.