Nguka v Republic

4. The applicant further contends that the intended appeal is arguable and raises substantial questions of law, including whether: the trial court and the rst appellate court properly evaluated the evidence on record; his right to a fair trial under Article 50(2) of the Constitution was observed; and whether the sentence imposed was lawful and proportionate in the circumstances. He maintains that the delay in instituting the appeal was neither deliberate nor inordinate, but was occasioned by ignorance of the appellate process, indigence and limited access to legal assistance while in prison custody. 5. According to the applicant, the respondent stands to suer no prejudice should the extension sought be granted, whereas he risks being permanently shut out from exercising his constitutional right of appeal if the application is declined. He therefore urges me to exercise my discretion in favour of granting the application and permit the intended appeal to be heard and determined on its merits in the interests of justice. 6. There were no papers led by the respondent in opposition to the application, despite evidence of service. However, both parties led written submissions. 7. In his written submissions, the applicant submits that this Court has jurisdiction under Rule 4 of the Court of Appeal Rules to extend time and ought to exercise it in his favour. He reiterates that the delay in lodging the intended appeal was occasioned by circumstances beyond his control that he has already alluded to elsewhere in this ruling. 8. The applicant further submits that the intended appeal is arguable and raises substantial questions of law deserving consideration by this Court. He maintains that no prejudice will be occasioned to the respondent if the application is allowed, whereas he stands to suer substantial injustice if denied an opportunity to pursue his appeal. 9. The applicant relies on Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 and Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR, for the proposition that extension of time is a discretionary remedy and that the Court should consider, inter alia, the length of delay, the reason for the delay, the arguability of the intended appeal, and the prejudice likely to be suered by the parties. He accordingly urges the Court to nd that he has furnished a satisfactory explanation for the delay and to grant the orders sought. 10. In response, Ms Brenda Oduor, learned Prosecution Counsel conceded the application. She noted that the applicant had attributed the delay to circumstances beyond his control, including his incarceration, lack of legal representation, limited access to legal support, and his transfer from Homabay G.K. Prison to Kisumu Maximum Prison and subsequently to Naivasha Maximum Security Prison. Counsel submitted that those circumstances may have impeded the applicant’s ability to institute the intended appeal within the prescribed time. Accordingly, while recognizing that the power to extend time is discretionary and dependent upon a satisfactory explanation for the delay and the arguability of the intended appeal, she indicated that she had no objection to the application. 11. I have considered the application, the adavit in support thereof, and the respective submissions. The application is brought under Rule 4 of the Court of Appeal Rules, which donates to this Court wide and an unfettered discretion to extend time for the doing of any act authorized or required by the Rules of this Court. 12. The principles governing the exercise of that discretion are now well settled. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi (supra), the Court held that, in deciding whether or not to extend time, the Court considers, among other factors, the length of the delay, the reason for the delay, the chances of the intended appeal succeeding if the application is granted, and the degree of prejudice likely to be suered by the respondent. Those principles were subsequently rearmed by the Supreme Court in Nicholas https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2001/eng@2026-09-28 2

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Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others (supra), where it was emphasized that extension of time is an equitable remedy available only to a deserving party who satisfactorily explains the delay. 13. The judgment sought to be challenged was delivered on 26th July, 2018, whereas the present application was led on 1st December, 2025. There is therefore no doubt that the delay of about 8 years is inordinate. However, as the Court observed in Mwangi v Kenya Airways Ltd [2003] KLR 486, the length of delay is not by itself decisive; what is critical is whether a plausible and satisfactory explanation has been oered. 14. In the present case, the applicant has given reasons for the delay. While those circumstances do not entirely account for the lengthy period of delay but are nonetheless plausible. I am mindful also that the applicant is appearing in person, in prison custody and that courts have consistently leaned towards facilitating, rather than impeding, access to justice where a reasonable explanation has been furnished. 15. I have also considered the draft grounds intended to be raised on appeal. Without making any denitive ndings, as doing so would prejudice the intended appeal in one or another, I am satised nonetheless that the intended appeal is not frivolous as it raises arguable questions of law touching on the evaluation of evidence, the observance of fair trial guarantees under Article 50(2) of the Constitution, and the legality of the sentence imposed. 16. Further, I note that the Respondent, through learned Prosecution Counsel, expressly does not oppose the application, notwithstanding the lengthy delay. In the circumstances, I am unable to discern any substantial prejudice that the respondent is likely to suer if the extension sought is granted. On the other hand, refusal of the application would permanently shut out the applicant from pursuing his intended second appeal. 17. Balancing all the relevant considerations, and guided by the constitutional imperatives of substantive and access to justice, I am persuaded that this is an appropriate case for the exercise of the Court's discretion under Rule 4 of the Court of Appeal Rules. I am accordingly satised that the interests of justice would be better served by aording the applicant an opportunity to ventilate his intended appeal on its merits. 18. In the result I allow the application. The applicant shall le and serve the Notice and Record of Appeal within the next thirty (30) days from 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/2026/2001/eng@2026-09-28 3

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