Meshack Omoke Kasongo v Republic

[2] Desirous of appealing further to this Court, he is however not able to do so automatically because he has been got up with the strict timelines of this Court with regard to the processing of appeals. He has consequently invoked Rule 4 of this Court’s rules which allows a victim of the rules to plead with the court for remorse and permission to nonetheless file an appeal out of time. That is the essence of the application now before me in which the applicant seeks extension of time to appeal to this Court against the said decision of the High Court. The application, which appears to have been drawn by the applicant personally while in custody and without legal assistance, seeks principally leave to lodge an appeal out of time. [3] In the grounds appearing on the face of the application and in the supporting affidavit sworn by the applicant, he states that although he intended to appeal, he was not supplied with a copy of the judgment of the first appellate court in time to enable him prepare and lodge his appeal within the prescribed period. He further contends that his intended appeal has high chances of success, that he is serving a lengthy sentence of forty (40) years' imprisonment, and that unless afforded an opportunity to pursue a further appeal, he stands to suffer prejudice. He also asserts that the respondent will suffer no prejudice if the orders sought are Page 2 of 5

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granted. Page 3 of 5

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[4] The record shows that the respondent was served with the hearing notice. However, no replying affidavit or any grounds of opposition were filed on behalf of the respondent. Similarly, no submissions were placed before the Court by any of the parties. In the circumstances, and being satisfied that service was effected, the court shall proceed to determine the application on the basis of the material placed before it by the applicant. [5] I have considered the application and the affidavit in support thereof. The issue falling for determination is whether the applicant has laid a sufficient basis for the exercise of this Court's wide and unfettered discretion under Rule 4 of the Court of Appeal Rules to extend time within which to institute an appeal. [6] It is settled that the power donated by Rule 4 is discretionary. In exercising that discretion however, the Court considers such factors as the length of delay, the explanation for the delay, the arguability of the intended appeal and the degree of prejudice likely to be occasioned to the opposite party if the extension sought is granted. See Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 and Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees - Civil Application No.190 of 2019. [7] The judgment sought to be appealed against was delivered on Page 4 of 5

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25th June, 2026, while the present application was filed on 30th July, 2026, Page 5 of 5

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a delay of about 36 days which is not necessarily inordinate. Nonetheless, the applicant attributes the delay to the fact that he was not supplied with the judgment of the first appellate court in time to enable him prepare his appeal. He further states that he is incarcerated and serving a lengthy sentence of forty years' imprisonment. [8] Although the applicant has not annexed a draft memorandum of appeal, he maintains that his intended appeal raises strong points of law and has high chances of success. At this interlocutory stage, the Court is not called upon to make definitive findings on the merits of the proposed appeal. It is sufficient that the intended appeal is not shown to be frivolous. [9] I have also considered the question of prejudice. The respondent has not opposed the application and no material has been placed before the Court demonstrating any prejudice that would be suffered if the applicant is accorded an opportunity to ventilate his intended appeal. On the other hand, the applicant is serving a substantial custodial sentence and stands to be denied an opportunity to challenge the decision of the High Court if the orders sought are declined. [10] Taking all the circumstances of the case into account, and bearing in mind that the application was prepared by the applicant Page 6 of 5

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in Page 7 of 5

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person from prison, I am satisfied that the explanation tendered for the delay is sufficient and that this is a proper case for the exercise of this Court's discretion in favour of the applicant. [11] Accordingly, the Notice of Motion dated 30th July, 2026, is hereby allowed. The applicant is granted leave to process his intended appeal out of time within the next forty-five (45) days from the date hereof. 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 8 of 5

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