Joseph Saningo Tiringa v Republic

that he was convicted of the offence of murder contrary to section 203 as read together with section 204 of the Penal Code in High Court Criminal Case No. 3 of 2020 and sentenced to forty (40) years imprisonment on 26th May, 2021. He deposes that he was unable to lodge a Notice of Appeal within the prescribed period because he relied on family members who intended to retain counsel on his behalf but were unable to do so owing to severe financial constraints. He further depones that, while in prison custody, he made several administrative attempts to pursue an appeal but encountered procedural difficulties that delayed the filing process. According to the applicant, he has throughout maintained an intention to challenge both conviction and sentence and his intended appeal raises arguable points of law regarding identification and the burden of proof. [3] Pursuant to directions of the Deputy Registrar of this Court, the applicant filed written submissions dated 14 th September, 2026, in support of the application. In those submissions, he reiterates that he has consistently intended to appeal against both conviction and sentence, and attributes the delay to incarceration, financial hardship, and difficulties encountered in accessing legal representation and the appellate process from prison custody. He contends that the intended appeal raises Page 2 of 7

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arguable issues of law and fact and that no prejudice will be occasioned to the respondent if the application is allowed. [4] Although served with the application, the respondent did not file any replying affidavit, grounds of opposition, written submissions or any other response. The application is therefore unopposed and what is stated therein is wholly uncontroverted. [5] 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.” [6] The principles governing the exercise of the Court’s discretion under Rule 4 are now well settled. In Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231, the Court stated: “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: first 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.” Page 3 of 7

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[7] Similarly, the applicant has relied on Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, where the Court emphasized that the discretion under Rule 4, though unfettered, must be exercised judicially so as to ensure that procedural rules do not become instruments of injustice. [8] The applicant has also cited Fakir Mohamed v Joseph Mugambi & 2 Others [2005] eKLR, in which the Court reiterated that judicial discretion must be exercised on reason and principle rather than caprice or arbitrary technicality. [9] In determining whether to extend time, the Court must therefore consider, among other factors, the length of delay, the explanation tendered for that delay, the arguability of the intended appeal and the prejudice, if any, likely to be suffered by the respondent. [10] The judgment sought to be challenged was delivered on 26 th May, 2021, whereas the present application was filed on 30 th July, 2026. There is therefore a substantial delay. However, delay alone is not decisive in applications of this nature. The Court must examine whether a satisfactory explanation has been proffered. [11] The applicant explains that he is incarcerated and that following his conviction and sentence, he depended on family members to secure a lawyer for purposes of lodging an appeal on Page 4 of 7

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his behalf. According to him, those efforts were unsuccessful because of severe financial constraints. He further depones that he made administrative efforts while in prison to advance the intended appeal but encountered procedural and technical difficulties that contributed further to the delay. These averments have not been controverted by the respondent and must be taken for what they are. [12] The Court takes judicial notice of the practical difficulties frequently encountered by and visited upon incarcerated inmates in accessing legal assistance and pursuing appellate remedies. In his submissions, the applicant has cited authorities recognizing that incarceration, impediments may, financial in hardship appropriate and administrative circumstances, constitute sufficient explanation for delay. [13] As regards the intended appeal, the applicant asserts that it raises substantial issues concerning identification, evaluation of evidence and the burden of proof in Criminal Cases. At this stage, it is not my forte to determine the ultimate merits of the intended appeal. It is sufficient if the proposed appeal is not frivolous and presents arguable questions deserving consideration by the Court. Page 5 of 7

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[14] I am satisfied that the applicant has demonstrated a continuing intention to challenge both conviction and sentence and has provided an explanation for the delay which, in the peculiar circumstances of his incarceration and alleged financial inability to secure legal representation, cannot be dismissed as implausible. I am further satisfied that the intended appeal is not frivolous. [15] On prejudice, none has been demonstrated by the respondent who, despite service, elected not to oppose the application. On the other hand, denial of an opportunity to pursue the intended appeal would effectively shut out the applicant from exercising the right of appeal guaranteed under Article 50(2)(q) of the Constitution. [16] In the circumstances, and guided by the principles in Leo Sila Mutiso v Hellen Wangari Mwangi (supra), Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet (supra), and Fakir Mohamed v Joseph Mugambi & 2 Others (supra) eKLR, I am persuaded that this is a proper case for the exercise of the Court’s discretion under Rule 4 of the Court of Appeal Rules. [17] Accordingly, the Notice of Motion dated 30 th July, 2026, is hereby allowed. The applicant is granted leave to process his Page 6 of 7

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intended appeal out of time within the next forty-five (45) days from the date of this ruling. Dated and delivered at Kisumu this 30 th day of September, 2026. ASIKE-MAKHANDIA ………………...………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR Page 7 of 7

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