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Original judgment

Lopela v Republic

Lopela v Republic (Criminal Application E064 of 2024) [2026] KECA 1850 (KLR) (25 September 2026) (Ruling) Neutral citation: [2026] KECA 1850 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT ELDORET CRIMINAL APPLICATION E064 OF 2024 PM GACHOKA, JA SEPTEMBER 25, 2026 BETWEEN MUSA MERINYANG LOPELA .............................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (An application for extension of time to appeal against the Conviction and sentence of the High Court of Kenya at Kapenguria (R. Sitati, J.) delivered on 11th August, 2020inHCR No. 08 of 2019) 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 Kapenguria High Court in HCCR No. 08 of 2019. The applicant was charged with the oence of Murder contrary to section 203 as read with section 204 of the Penal Code. He was convicted and sentenced to 30 years’ imprisonment on 11th August 2020. 2. The applicant’s Notice of Motion is supported by his supporting adavit dated 16th August 2024. He urged this Court to allow the application for the reason that he was not furnished with the court proceedings to enable him le an appeal in time. 3. The appellant led submissions dated 9th September 2026 urging that he led his appeal on time but never received feedback, prompting the appellant to draft and lodge an appeal out of time. He urged that his grounds of appeal raise questions of both law and fact t for determination in this appeal. He cited the decision in Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet (2018) eKLR, where the court stated that there should be valid and clear reasons upon which the court can exercise its discretion. Further, that the reasons pass the threshold to allow his appeal to proceed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1850/eng@2026-09-25 1

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4. The respondent did not oppose the application. Through Prosecution Counsel Michael Nolan Maliambo, it led submissions dated 9th September 2026. The respondent conceded that the applicants’ reason for delay seems plausible, and his delay is not inordinate being about 6 years and 1 month. Relying on the case of Kimanga vs Republic (Criminal Application no. E001 of 2025) [20251 KECA 354 (KLR), the respondent urged the Court to allow the application. 5. I have carefully considered the application, the supporting adavit and the submissions 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. 6. I note that the delay in ling the application is about four years and not six and half years as argued by the respondent. That is an inordinate delay and the applicant was therefore required to provide a satisfactory and plausible explanation, as extension of time is a matter of law, not an act of mercy. 7. The applicant attributes the delay to the court’s failure to provide him with the proceedings, a fact the respondent does not dispute. I take judicial notice that he is serving a life sentence and acknowledge the practical diculties that may arise. Even so, inmates are not exempt from the duty to act diligently. The applicant could have written to the court registry requesting the proceedings, sought assistance from the Ocer in Charge of the prison, or approached a legal aid organization. He has not shown that he took any of these steps. It is therefore insucient for him to state, four years later, that he could not le an appeal without providing a satisfactory explanation. He was required to demonstrate reasonable eorts to pursue the appeal, including seeking assistance from the relevant prison authorities where necessary. 8. Accordingly, I am not satised that the applicant has explained the inordinate delay and 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 DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1850/eng@2026-09-25 2

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