Joseph Momanyi Nyakamba alias Boy v Republic

as read with Page 2 of 6

page 2 of 11

section 204 of the Penal Code and sentenced to thirty (30) years imprisonment by the High Court at Nyamira on 9 th July, 2026. He deposes that following delivery of the judgment; he was traumatized and was unaware of the proper procedure for lodging an appeal. He therefore sought legal advice while in prison custody. [3] The applicant further depones that, with the assistance of prison officers, he attempted to file a Notice of Appeal through the High Court at Nyamira for onward transmission to this Court but the intended process but did not yield the desired result. He states that he was later advised to utilize the Court's electronic filing platform but encountered difficulties as there was no direct avenue through which a Notice of Appeal could be filed in this Court. He attributes the delay to those procedural difficulties, lack of legal representation and his poor financial circumstances. [4] Pursuant to directions of the Deputy Registrar of this Court, the applicant filed written submissions dated 15th September, 2026. In those submissions, he reiterates that immediately after conviction and sentence he sought to appeal but, owing to ignorance of procedure, lack of legal assistance and financial constraints affecting his family, he was unable to file the requisite Notice of Appeal within time. He apologizes profusely Page 3 of 6

page 3 of 11

for the delay and urges the Court to exercise its discretion in his favour. He also contends Page 4 of 6

page 4 of 11

that the respondent will not suffer any prejudice if the application is allowed. [5] The respondent September 2026. filed In written those submissions submissions, dated the 23rd respondent acknowledges that the application is one for extension of time under Rule 4 of the Court of Appeal Rules and expressly states that it does not oppose the application. The respondent further submits that the delay is not inordinate and that no prejudice will be occasioned to it should the application be allowed. [6] The application falls for consideration under Rule 4 of the Court of Appeal Rules which 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] Considerations to be taken into account in applications of this nature were enunciated by this Court in Henry Mukora Mwangi vs. Charles Gichina Mwangi - Civil Application No. Nai. 26 of 2004 thus: “It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by Page 5 of 6

page 5 of 11

referring to the Page 6 of 6

page 6 of 11

decision in Mwangi v Kenya Airways Ltd. [2003] KLR 486 in which this Court stated: “Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance, in Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi - Civil Application No. Nai. 255 of 1997 (unreported), the Court expressed itself thus: ‘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: firstly, 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.’” [8] Accordingly, in determining the present application, the Court is required to consider the length of delay, the explanation offered therefor, the arguability of the intended appeal and the prejudice, if any, likely to be occasioned to the respondent. [9] The judgment sought to be challenged was delivered on 9 th July, 2026 while the present application was filed on 27 th July, 2026. The delay is therefore approximately eighteen (18) days beyond the period prescribed for lodging a Notice of Appeal under the rules of this court. [10] In my view, such delay cannot be described as inordinate. In Page 7 of 6

page 7 of 11

any event, the applicant has offered an explanation for the same. He Page 8 of 6

page 8 of 11

states that he was initially unaware of the proper appellate procedure to follow; that despite efforts made through prison administration to lodge a Notice of Appeal, the process encountered difficulties; and that he remained unrepresented owing to his inability and that of his family to secure legal representation. Those averments have not been challenged. Indeed, the respondent expressly states that it does not oppose the application. [11] This Court cannot ignore the practical difficulties often experienced by incarcerated inmates in accessing legal services and navigating appellate procedures without professional guidance. While imprisonment alone does not automatically excuse delay, it is a factor that may properly be taken into account when determining whether sufficient cause has been shown. [12] As regards the intended appeal, it is not necessary at this stage to conclusively determine its merits. It suffices that the applicant seeks to challenge his conviction and sentence for the offence of murder, and nothing placed before me suggests that the intended appeal is frivolous. [13] On prejudice, the respondent has expressly indicated that it does not oppose the application and has acknowledged that no Page 9 of 6

page 9 of 11

prejudice will be occasioned by enlargement of time. Page 10 of 6

page 10 of 11

[14] Taking into account the relatively short period of delay, the explanation tendered by the applicant, his status as an incarcerated and unrepresented indigent, and the respondent’s position that the application is unopposed, I am satisfied that this is a proper case for the exercise of the Court’s discretion under Rule 4 of the Court of Appeal Rules. Consequently, I find merit in the application. [15] Accordingly, the Notice of Motion dated 27 th July, 2026, is hereby allowed. The applicant shall file and serve the Notice of Appeal out of time within the next twenty-one (21) days from the date of this ruling. Dated and delivered at Kisumu this 30th day of September, 2026. ASIKE-MAKHANDIA ………………...………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 11 of 6

page 11 of 11