Nyakundi v Republic (Criminal Application E060 of 2024) [2026] KECA 2000 (KLR) (28 September 2026) (Ruling) Neutral citation: [2026] KECA 2000 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CRIMINAL APPLICATION E060 OF 2024 MS ASIKE-MAKHANDIA, JA SEPTEMBER 28, 2026 BETWEEN FREDRICK NYARANGA NYAKUNDI ............................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an application for leave to appeal out of time against the judgment of the High Court of Kenya at Kisii, (Kiarie J.) in HCCRA No. NO. E017 of 2023) RULING 1. The application before me is the undated Motion in which the applicant, Fredrick Nyaranga Nyakundi, seeks in the main leave to appeal out of time against the judgment of the High Court of Kenya at Kisii in HCCRA No. E017 of 2023. 2. The application is premised on the grounds set out on its face and those contained in the supporting adavit of the applicant. 3. The applicant's case appears to be that he was convicted of the oence of delement and sentenced to life imprisonment by the trial court and that his subsequent appeal in the High Court of Kenya at Kisii in HCCRA No. E017 of 2023 was unsuccessful. He avers that he still intends to challenge that decision before this Court but the time limited by the Rules of this Court for doing so have long since expired necessitating the instant application. The applicant further maintains that the intended appeal has high chances of success and raises issues warranting consideration by this Court. Accordingly, he urges the Court to grant the orders sought and facilitate the hearing of his intended appeal on the merits. 4. Despite being served with the application as well as the hearing notice, the respondent did not deem it necessary to respond. Ultimately then, I take the application as unopposed. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2000/eng@2026-09-28 1
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5. Before considering the merits of the application, I must observe that considerable diculty has been occasioned in discerning the precise basis upon which the relief sought is anchored. The applicant invokes Rule 113(1)(a) and (b), Rule 113(2) and Rule 113(5) of the Court of Appeal Rules, 2010, while at the same time seeking leave to appeal out of time. The motion is therefore not a model of clarity and some of the provisions cited do not readily correspond with the reliefs sought. Equally, critical particulars relating to the impugned judgment, including the date of delivery and the identity of the Judge, have been left blank. Notwithstanding those shortcomings, and bearing in mind the duty of the Court to administer substantive justice where the applicant's intention may reasonably be discerned, I shall determine the application on the basis of the material placed before me. 6. Rule 4 of the court of appeal rules provides: “ The Court may, on such terms as it thinks just, by order, extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended.” 7. Under Rule 4 of this Court Rules 2022, an extension of time is a discretionary power grantable on well settled principles. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1991] eKLR, the Court set out the principles to include the length of the delay, the reason for the delay, the chances of the appeal succeeding, the degree of prejudice to the respondent, and the conduct of the parties. The principles were rehashed in PMW v Republic [2003] KLR 486 where the Court stated thus: “ Over the years, the Court has set out guidelines on what a single judge should consider when dealing with an application for extension of time under Rule 4. For instance, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No. Nai. 255 of 1997, the Court expressed itself thus: It is now well settled that the decision whether to extend the time is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are; rst, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.” 8. In the present application, the applicant states that he was convicted and sentenced to life imprisonment by the trial court. His appeal in Kisii High Court was dismissed. Beyond those averments, little explanation is provided concerning the delay. Nevertheless, having regard to the absence of opposition, the applicant's status as a prisoner, and the constitutional imperative of facilitating access to justice, I am satised that the interests of justice would be better served by allowing the applicant an opportunity to pursue his intended appeal. 9. Accordingly, the application is allowed. The applicant shall le and serve the requisite appellate documents within thirty (30) days of the date of this ruling. DATED AND DELIVERED AT KISUMU THIS 28TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ……………….………………… JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2000/eng@2026-09-28 2
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I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2000/eng@2026-09-28 3
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