Mwombombia v Republic (Criminal Application E048 of 2025) [2025] KECA 2148 (KLR) (28 November 2025) (Ruling) Neutral citation: [2025] KECA 2148 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI CRIMINAL APPLICATION E048 OF 2025 S OLE KANTAI, JA NOVEMBER 28, 2025 [IN CHAMBERS] BETWEEN ZACHARIA MWOMBOMBIA ............................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (An application for extension of time to file an Appeal out of time against the Judgment and Decree of the High Court at Meru (a. Ong’injo, J.) delivered on 23rd January, 2020 in H.C. CRA No. 23 of 2019.) RULING 1. 2. By the undated Motion forwarded by Officer in Charge, Nyeri Maximum Prison on 22nd July, 2025 the applicant, Zacharia Mwombombia applies: “ 1. That, this Hon court be pleased to admit this application to do leave to appeal out of time as pursuant to rules 40 of the court of appeal rules and any other applicable provision of the law. 2. That, this hon. court has jurisdiction to hear and determine this application. For extension of time…” The application is supported by his affidavit where he says that he was charged with the ofience of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and sentenced https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2148/eng@2025-11-28 1
page 1 of 2
to imprisonment for life on 17th March, 2018; he appealed to the High Court at Meru but the appeal was dismissed on 23rd January, 2020; that he presented a second appeal: “ …in time at Meru Prison documentation office but was then transferred to another prison, before I could get my appeal number…” 3. He was to later learn that his appeal had not been allocated a number; he applies for time extension as it was not his fault that his appeal had not been allocated a serial number; he says that his intended appeal has high chances of success and that he is 67 years old. He has attached a copy of the judgment in Meru Criminal Appeal No. 23 of 2019; Notice of Appeal dated 28th January, 2019 and homemade Memorandum of Appeal where 7 grounds of appeal are set out. 4. I have not seen a replying affidavit by the respondent and I note hearing notice dated 11th November, 2025 served, inter alia, to odppnyerinyeri@odpp.go.ke. 5. The principles that govern application for extension of time were well captured in the case of Leo Sila Mutiso v. Rose Hellen Wangari Mwangi Civil Application No. Nai 255 of 1997 as follows: “ It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well stated that in general the matters which this Court takes into account in deciding whether to grant an extension of time, are first, the length of the delay, secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted." 6. The applicant says that he prepared and presented documents to appeal the judgment of the High Court but that he was not allocated an appeal number; that he was then transferred to another prison which made him unable to follow up on the appeal he had filed. He requests that time be extended to enable him appeal. I think that explanation for delay is reasonable. Considering his circumstances where he is a convict who says that he was transferred from one prison to another the delay is not inordinate. I have looked at grounds of appeal and I think that they are reasonable grounds calling for consideration by the Court. 7. I allow the application. Let Notice of Appeal be lodged within ten (10) days and Record of Appeal within twenty-one (21) days thereafter. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. ole KANTAI ................................... JUDGE OF APPEAL I certify that this is a true copy of the original signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2148/eng@2025-11-28 2
page 2 of 2