Polycarp Aringo Nyokaye v Republic

(b) of the Energy Act. Page 2 of 9

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He further depones that, being dissatisfied with the decision of the trial court, he lodged High Court of Kenya at Kisumu Criminal Appeal No. E058 of 2025 which was subsequently heard and dismissed in its entirety. [3] That following the dismissal of his appeal by the High Court, he wished to pursue a further appeal before this Court but encountered difficulties in complying with the requisite procedures whilst in custody. He further deposes that he lacked legal representation and that his circumstances were aggravated by his poor financial background. However, with the assistance of prison officers, he prepared and forwarded a Notice of Appeal to the High Court at Kisumu in the expectation that it would be transmitted to the Court of Appeal registry at Kisumu. According to him, that effort was unsuccessful. He further explains that he was subsequently advised to file the Notice of Appeal through the Court Tracking System (CTS), but difficulties arose because there was no direct link through which the Notice could be filed to the Court of Appeal at Kisumu. He therefore maintains that the delay complained of was occasioned by circumstances beyond his control and not by deliberate inaction on his part. [4] In his written submissions dated 22nd September, 2026, he merely reiterates and expounds on all the foregoing. He reiterates that the delay in lodging the Page 3 of 9 Notice of Appeal was not

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occasioned by any Page 4 of 9

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omission or neglect on his part but arose from communication challenges, lack of legal representation and his impoverished background. He apologises profusely for failing to lodge the intended appeal within the prescribed fourteen (14) days and urges the Court to exercise its wide and unfettered discretion in his favour. He further submits that the respondent will suffer no prejudice if the application is allowed, whereas he stands to suffer prejudice if denied an opportunity to pursue his intended appeal. He asserts that the intended appeal has overwhelming chances of success. [5] The application was not opposed as no papers in that regard were ever filed by the respondent. Instead, it purported to do so through written submissions filed by Ms Busienei, Assistant Director of Public Prosecutions. As it has been constantly stated, written submissions are not pleadings and cannot take the place of pleadings. [6] Nonetheless, the long and short of those submissions is that According to the respondent, the material placed before the Court was insufficient for purposes of evaluating the length of delay or the plausibility of the explanation advanced. Consequently, the respondent urges the Court to dismiss the application. [7] I have considered the Notice of Motion, the supporting affidavit, the rival submissions and the law. The issue falling for Page 5 of 9

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determination is whether the applicant has established a sufficient basis for the exercise of this Court's discretion to enlarge time within which the Page 6 of 9

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applicant should lodge a Notice of Appeal. In Wasike v Swala [1984] KLR 591, this Court expressed itself thus: “.... Rule 4 now provides that the Court may extend the time on such terms as it thinks just, an applicant must now show, in descending scale of importance, the following factors: a) That there is merit in his appeal. b) That the extension of time to institute and/or file the appeal will not cause undue prejudice to the respondent; and c) That the delay has not been inordinate.” [8] Before considering whether the applicant has satisfied the requirements for extension of time, it is necessary to address the legal framework under which the application falls for determination. Although the Motion is expressed to be brought under Rule 113 of the Court of Appeal Rules, the substantive relief sought is enlargement of time within which to lodge a Notice of Appeal. The jurisdiction of this Court to extend time is presently donated by Rule 4 of the Court of Appeal Rules, 2022. It is a settled principle that the Court is concerned with the substance rather than the form of an application. In the circumstances of this case, and bearing in mind that the applicant is an indigent, appearing in person and in prison custody, I do not consider the erroneous citation of the applicable Rule to be fatal. I shall therefore determine the application on its merits as one invoking this Court's jurisdiction to extend time. [9]The principles governing the exercise of discretion under Rule 4 Page 7 of 9

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are well settled. The discretion is unfettered, though it must be Page 8 of 9

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exercised judicially and on the basis of sound reason. Among the factors commonly considered are the length of the delay, the reason for the delay, the arguability of the intended appeal and the degree of prejudice likely to be occasioned to the respondent if the extension sought is granted. These factors are neither exhaustive nor of equal weight in every case. See Fakir Mohammed v. Joseph Mugambi & 2 others [2005] eKLR. Ultimately, each application must turn on the peculiar facts presented. [10] The first issue concerns the length of the delay. The applicant states that the judgment he intends to challenge was delivered on 19th June, 2026. He was therefore required to lodge a Notice of Appeal within fourteen days thereof. While the record before me does not contain the impugned judgment and the Court is therefore unable to independently verify the date of delivery, the application bears an endorsement by the Officer-in-Charge, Kisii Main Prison dated 6th July, 2026. On the face of the material presented, the application appears to have been initiated shortly after the expiry of the prescribed period. The delay disclosed is therefore neither prolonged nor prima facie inordinate. [11] The next issue is whether the delay has been satisfactorily explained. The applicant attributes the delay to a combination of factors. He states that he is incarcerated at Kisii Main Prison, lacks Page 9 of 9

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legal representation, is of limited financial means and was unfamiliar Page 10 of 9

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with the procedural requirements governing the processing of appeals to this Court. He explains that he prepared a Notice of Appeal and, through prison authorities, caused the same to be forwarded to the High Court at Kisumu with the expectation that it would be transmitted to the Court of Appeal. According to him, that process was unsuccessful. He further states that he subsequently sought guidance and was advised that filing ought to be undertaken through the Court Tracking System, but practical challenges were encountered in accessing and utilising the appropriate filing platform while he remained in custody. [12] Much as It is indeed desirable that an applicant seeking extension of time should place before the Court sufficient material from which the Court may objectively assess the period of delay and the explanation offered, however, the Court cannot ignore the peculiar circumstances in which the applicant finds himself. Unlike a litigant at liberty, the applicant is serving a custodial sentence. His ability to communicate with court registries, obtain legal advice, access electronic filing systems and personally monitor compliance with procedural steps is necessarily constrained. The explanation advanced by the applicant is not inherently implausible therefor. The difficulties associated with navigating appellate procedures from prison, particularly without legal representation, are matters that cannot be dismissed lightly. Page 11 of 9

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[13] I am therefore satisfied that the applicant has placed before the Court a reasonable explanation for the delay, though not an ideal one. In the circumstances of this case, the explanation cannot be said to disclose indolence, deliberate disregard of procedural timelines or abuse of the Court process. [14] In the present case, the absence of the judgment sought to be impugned limits the Court's ability to undertake such an assessment of the potential success of the intended appeal. Equally absent is a draft memorandum of appeal. As a consequence, the Court has little material from which to evaluate the precise grounds intended to be advanced before it. Nevertheless, the Court must bear in mind the nature of the proceeding before it. This is not the appeal itself. The applicant is not required, at this stage, to demonstrate that the intended appeal will inevitably succeed. It is sufficient if the Court is satisfied that the intended appeal is not plainly frivolous. [15] The applicant maintains that he remains dissatisfied with both his conviction and sentence and wishes to invoke his right of appeal. The proceedings arise from a criminal prosecution in which he is serving a substantial sentence of twenty years' imprisonment. While the absence of the impugned judgment weighs against the application, I am unable, on the material available, to conclude that the intended appeal is frivolous or Page 12 of 9

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hopeless. The omission is therefore Page 13 of 9

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a factor to be weighed against the applicant rather than an automatic bar to the exercise of discretion. [16] The Court must also consider the issue of prejudice. The respondent has not identified any specific prejudice likely to be suffered if the extension sought is granted. No suggestion has been made that evidence has been lost, that the respondent's ability to respond to the intended appeal has been compromised, or that the administration of justice would otherwise be impeded. On the other hand, the prejudice likely to be suffered by the applicant if the application is refused is readily apparent. Refusal would foreclose his opportunity to invoke the appellate jurisdiction of this Court against a conviction and sentence under which he is presently serving a lengthy custodial term. While finality of litigation remains an important consideration, it must be balanced against the need to ensure that litigants, particularly unrepresented persons in custody, are not shut out from the appellate process without good reason. [17] Having considered the totality of the material placed before the Court, I am satisfied that the delay disclosed is relatively short; that the explanation advanced, though not perfect, is reasonably attributable to the applicant's custodial status, lack of legal representation and practical difficulties encountered in attempting to lodge the requisite Notice of Appeal; that no Page 14 of 9

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specific prejudice has been demonstrated by the respondent; and that the interests of Page 15 of 9

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justice favour according the applicant an opportunity to ventilate his intended appeal. [18] In the circumstances, I am persuaded that this is a proper case for the exercise of the Court's discretion in favour of the applicant. Accordingly, I would allow the Notice of Motion and order as follows: (i) The applicant shall lodge and serve a Notice of Appeal within fourteen (14) days from the date of this ruling. (ii) Upon lodging the Notice of Appeal, the intended appeal shall be instituted within sixty. (60) days thereafter. Dated and delivered at Kisumu this 29th day of September, 2026. ASIKE MAKHANDIA ……………..….………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 16 of 9

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