Onsongo v Republic

4. The applicant, in further support of the motion submits that the present application is brought under Rule 4 of the Court of Appeal Rules, 2022 and he urges the Court to exercise its discretionary power to enlarge time for ling the intended appeal. He contends that the delay was occasioned by circumstances beyond his control, namely the late receipt of the High Court judgment, nancial constraints, and unsuccessful eorts by his family to secure legal representation on his behalf. 5. Relying on Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 and Fakir Mohamed v Joseph Mugambi & 2 Others [2006] KECA 240 (KLR) amongst others, he submits that the delay has been satisfactorily explained, that the Court's discretion under Rule 4 is unfettered and should be exercised in furtherance of substantive justice, and that the intended appeal raises arguable issues deserving consideration. 6. He further invokes Article 50(2)(q) of the Constitution, arguing that he has a constitutional right of appeal and that no prejudice will be occasioned to the respondent if the application is allowed. He accordingly prays that time be enlarged and leave be granted to le the intended appeal out of time. 7. From the record, the application was served on the respondent and subsequently directions were issued by the Deputy Registrar of this Court regarding the manner of disposal of the application. The respondent neither led any response to or written submissions in opposition to the application. As it is, therefore I deem the application as unopposed. 8. Having considered the Motion, the supporting adavit, the applicant's written submissions and the law, I note that the application is principally anchored on Rule 4 of the Court of Appeal Rules, under which the applicant seeks enlargement of time to le an appeal against the judgment of the High Court in HCCRA No. E002 of 2022 delivered on 25th January, 2024. The applicant's case is that although he intended to pursue a further appeal, he was unable to do so within the prescribed period because he did not receive the judgment of the High Court in time and had relied on relatives to engage an advocate on his behalf, but their eorts were unsuccessful owing to nancial constraints. 9. The applicant further invokes Article 50(2)(q) of the Constitution in reiterating that denying him an opportunity to appeal would unjustly curtail his constitutional right of appeal. 10. Under Rule 4 of the Court of Appeal Rules, 2022, an extension of time is a discretionary power grantable on well settled principles. This Court in the case of PMW v Republic [2025] KECA 572 (KLR), stated that: “ The law is settled in terms of what an applicant needs to establish in order for the Court to exercise its discretion in his favour. In that regard, in Leo Sila Mutiso v Helen Wangari Mwangi [1999] 2 EA, this Court held 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 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 the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted.’” 11. The question falling for determination is therefore whether the explanation oered by the applicant for the delay constitutes sucient cause for the exercise of the Court's discretion in his favour. From the material placed before me, the applicant has consistently demonstrated his desire to challenge the judgment of the High Court but was unable to lodge the intended appeal within time because of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2002/eng@2026-09-28 2

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the reasons he has advanced which I nd plausible and more signicantly, since no response has been led by the respondent to contest those factual assertions. 12. Ultimately, I am satised that the delay was occasioned by the circumstances set out above by the applicant rather than by any deliberate inaction on his part. 13. In the circumstances, and taking into account the uncontroverted explanation advanced by the applicant, the authorities cited in support of the application, and the constitutional right of appeal invoked by the applicant, I am satised that the applicant has placed before me sucient grounds to warrant consideration of the Court's discretionary jurisdiction under Rule 4 of the Court of Appeal Rules in his favour. 14. Accordingly, I make the following orders: A. The application is allowed. B. Time for ling and serving a Notice of Appeal against the judgment of the High Court of Kenya at Kisii delivered on 25th January, 2024, in HCCRA No. E002 of 2022 is hereby extended. C. The applicant shall lodge and serve the Notice of Appeal within twenty-one (21) days from the date of this ruling. The applicant shall thereafter le and serve the Record of Appeal within thirty (30) days of lodging the Notice of Appeal or within such period as may be prescribed by the Rules. DATED AND DELIVERED AT KISUMU THIS 28TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ……………….………………… 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/2026/2002/eng@2026-09-28 3

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