Kabiru v Republic (Criminal Application E059 of 2024) [2026] KECA 1849 (KLR) (25 September 2026) (Ruling) Neutral citation: [2026] KECA 1849 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT ELDORET CRIMINAL APPLICATION E059 OF 2024 PM GACHOKA, JA SEPTEMBER 25, 2026 BETWEEN JOSHUA NJOROGE KABIRU ................................................................ APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (An application for extension of time to appeal against the Conviction and sentence of the High Court of Kenya at Kitale (H.K. Chemitei, J.) delivered on 9{{^th}} March, 2017 in HCRA No. 9 of 2015) RULING 1. By Notice of Motion dated 16th August 2024, the applicant seeks leave of this Court to appeal out of time against the conviction and sentence of the Kitale High Court in HCCRA No. 9 of 2015. The applicant was charged with the oence of delement contrary to section 8(1) as read with section 8(2) of the Sexual Oence Act No. 3 of 2006 in the Kitale Chief Magistrate’s Court Criminal Case No. 1565 of 2013. He was convicted and sentenced to life imprisonment. Thereafter, the applicant appealed before the Kitale High Court Criminal Appeal No. 9 of 2015 where his appeal was heard and dismissed on 9th March 2012 by Chemitei, J. 2. The applicant’s Notice of Motion is supported by his undated supporting adavit. He has also annexed an undated notice of appeal which is thumb stamped by him. He urged this Court to allow the application on the ground that he relied on his relatives who promised to hire a lawyer for him to le an appeal but could not do so due to nancial constraints. 3. The applicant led submissions dated 9th September 2026 where he submitted that the jurisdiction of this Court to extend time is anchored under rule 4 of the Court of Appeal Rules, 2022 and that the principles governing the exercise of this judicial discretion are well settled through a long line of jurisprudence, inviting the court to be guided by the landmark principles enunciated in Fakir https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1849/eng@2026-09-25 1
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Mohamed vs Mohamed Abdullah Bayusuf [2015] eKLR; Mwangi vs Kenya Airways Limited [2003] KLR486; Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet [2018] eKLR and City Council of Nairobi vs Tom Mukasa [2007] eKLR. 4. The applicant submitted that the delay of seven (7) years was neither deliberate nor willful. He argued that, as an unrepresented prisoner serving a life sentence, he was constrained by his transfer from Eldoret Maximum Prison to Naivasha Maximum Prison and was unable to pursue the appeal because of what he described as institutional bureaucracy. He further contended that his lack of legal knowledge and the absence of feedback from the court registry contributed to the delay. 5. The respondent led written submissions dated 24th July 2026. Ms. Kisui Grace Wavinya, Prosecution Counsel submitted that the delay of 7 years is not inordinate. In addition, it was submitted that the applicant has given plausible reasons being; that his relatives who promised to hire a lawyer for him failed to so due to nancial constraints. Citing the case of Enono vs Republic No. E005 of 2025 [2025] KECA 355 KLR, the respondent argued that the law does not minimum or maximum period of delay, but what the court will exercise its discretion in favour of a party who oers satisfactory reasons for the delay. 6. I have considered the application, the supporting adavit and the submissions led by the parties. The discretion to extend under rule 4 of the Court of Appeal Rules, 2022 is wide and discretionary. However, it must be exercised judiciously. This means that an applicant must give good and cogent reasons for the delay. Though the law does not set the minimum of maximum period of for the delay, the length of the delay is material and must be satisfactorily explained. 7. I disagree with the respondent’s submission that a seven-year delay is not inordinate; it plainly is. An applicant seeking an extension of time must therefore provide a satisfactory and plausible explanation for the delay, as such an extension is a matter of law, not an act of mercy. 8. I have considered the applicant’s explanation that his relatives promised to retain counsel for him but failed to do so because of nancial constraints. He also states that he was transferred from Eldoret Maximum Prison to Naivasha Maximum Prison and was unable to pursue the ling of the appeal because he lost contact with the court registry. I take judicial notice that the applicant is serving a life sentence and am alive to the diculties that this may present. However, many inmates pursue their appeals, and the law does not exempt a prisoner from the basic obligation to demonstrate diligence in doing so. The applicant could have written to the court registry, petitioned the Ocer in Charge of his prison for assistance, or sought help from a legal aid organization. He has not shown that he attempted any of these avenues. This is therefore an applicant who failed to take any action for a very long time. For the Court to exercise its discretion despite such inordinate delay, good reasons are required. Having carefully considered the grounds, the supporting adavit and the submissions, I am not satised that the applicant deserves the exercise of my discretion. 9. Accordingly, I dismiss the application. DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2026. M. GACHOKA C.Arb, FCIArb. ............................................ JUDGE OF APPEAL I certify that this is a true copy of the original. Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1849/eng@2026-09-25 2
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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1849/eng@2026-09-25 3
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