Republic v Eminyi

the application is that the delay in ling the notice of appeal is explainable, as the counsel in conduct of the matter had to get specic and personal directions of the Director of Public Prosecutions as this is a matter of immense public interest. Further that the Respondent would not suer any prejudice if the Court extends time. 4. The applicant detailed the proceedings that took place in the High Court and the grounds and public interest elements of its intended appeal. A draft memorandum of appeal was likewise attached, which raised issues on the constitutionality of the Reconciliation/ Mediation Settlement Agreement and the role of the State and applicant in its adoption, and its implications on the administration of justice. These averments were reiterated in written submissions dated 2nd June 2026 led by Victor Juma Owiti, a Principal Prosecution Counsel, in which Rule 4 of the Court of Appeal Rules and various judicial decisions were cited on the court's inherent power to make orders necessary to serve the ends of justice and prevent abuse of the court process. It was averred that the delay in lodging the Notice of Appeal is explainable and not inordinate. 5. As at the time of writing this ruling, the respondent’s response or written submissions had not been availed, and there was non- compliance of directions given in this regard. This application is therefore unopposed. Rule 58 (2) of the Court of Appeal Rules in this regard stipulates that if an applicant appears or complies and the respondent fails to appear or comply, the application shall proceed in the absence of the respondent, unless the Court sees t to adjourn the hearing. There was no request for adjournment of the hearing on record when I heard the application in chambers in the absence of the parties on 7th July 2026. 6. I have considered the pleadings and arguments put forth by the applicant. The principles that apply to an application for extension of time under Rule 4 of the Court of Appeal Rules of 2022 have been the subject of many decisions of this Court and the Supreme Court of Kenya. In summary, this Court conrmed in the case of Leo Sila Mutiso vs Rose Hellen Wangare Mwangi (1999) 2 EA 231, that the decision whether or not to extend time for appealing is essentially discretionary, taking into account the length of delay and reason for the delay. 7. In the case of Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others, Supreme Court of Kenya Application (supra), the Supreme Court set down the underlying principles that a Court should consider in exercising its discretion as being: “ i. Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court; ii. A party who seeks an extension of time has the burden of laying a basis to the satisfaction of the court; iii. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-to-case basis; iv. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court; v. Whether the respondents will suer any prejudice if the extension is granted; vi. Whether the application has been brought without undue delay; and vii. Whether in certain cases, like election petitions, public interest should be a consideration for extending time." https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2066/eng@2026-07-17 2

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8. The Supreme Court also pronounced as follows in the case of Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet (2018) eKLR: “ the law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 9. I have perused the grounds of appeal raised by the applicant and they are arguable. The reason for the delay in ling the appeal is also plausible given that administrative delays do occur in considering and giving directions in such matters of public interest. Lastly, no demonstrated prejudice would be occasioned to the respondent if this application is granted, as he will still have the opportunity to participate in the intended appeal. I am therefore persuaded that sucient cause for the delay in ling the application for leave has been demonstrated by the applicant, and that the delay of one month before ling the instant application was not inordinate. 10. The applicant is accordingly granted leave to le and serve a Notice of Appeal out of time against the ruling delivered on 25th February 2026 in Republic vs Nathaniel Ngota Eminyi -Vihiga High Court Criminal Case No. E001 of 2024 by the High Court at Vihiga (J. Kamau J.). The applicant shall le and serve the said Notice of Appeal within thirty (30) days of the date of delivery of this ruling. There shall be no orders as regards the costs of the application. 11. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 17TH DAY OF JULY, 2026. I certify that this is a true copy of the original Signed DEPUTY REGISTRAR P. NYAMWEYA. …………………………………… JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2066/eng@2026-07-17 3

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