Nyabiage v Republic

Appeal could be lodged before this Court. He attributes the delay to those procedural challenges, lack of legal representation and his poor family background. 4. Pursuant to the directions by the Deputy Registrar of this Court, the applicant led written submissions dated 14th September, 2026. In those submissions, he reiterates that he was convicted and sentenced to thirty years' imprisonment; that his appeal before the High Court was dismissed on 16th July, 2026; and that immediately thereafter he attempted to pursue a further appeal. He submits that the delay was neither deliberate nor occasioned by his own omission but arose from diculties in communication, lack of legal assistance, inability by his family to retain counsel and challenges encountered while attempting to le the requisite Notice of Appeal through the available channels. He expresses immense remorse for the delay and urges the Court to grant him an opportunity to pursue his intended appeal, which he contends has overwhelming chances of success. He further contends that the respondent stands to suer no prejudice if the application is allowed. 5. The respondent led written submissions dated 23rd September, 2026. In those submissions, the respondent acknowledges that the applicant's Notice of Motion dated 5th August, 2026, supported by an adavit of even date, seeks leave to appeal out of time. The respondent further submits that the delay in lodging the Notice of Appeal is not inordinate and that no prejudice will be occasioned to the respondent if the application is allowed. Signicantly, the respondent expressly states that the prosecution does not oppose the application for extension of time notwithstanding the applicant's failure to annex a draft memorandum of appeal and proceedings of the two courts below. 6. The application falls for determination under Rule 4 of the Court of Appeal Rules, 2022, which provides: "The Court may, on such terms as may be 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. The Supreme Court of Kenya pronounced itself in the question of extension of time in the case of Andrew Kiplagat Chemaringo v. Paul Kipkorir Kibet [2018] eKLR, and stated as follows: “ 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.” 8. Accordingly, in determining the present application, I am required to consider the length of the delay, the explanation oered for it, the arguability of the intended appeal and the prejudice, if any, likely to be suered by the respondent. 9. From the material placed before me, the judgment sought to be challenged was delivered on 16th July 2026, while the present application was led on 5th August, 2026. The delay is therefore approximately twenty (20) days beyond the period prescribed for lodging a Notice of Appeal which cannot be said to be inordinate. More importantly, the applicant has oered an explanation for the delay. He states that following dismissal of his appeal, he was unaware of the applicable appellate procedure; that he attempted, with the assistance of prison ocers, to have a Notice of Appeal transmitted through the High Court at Nyamira; that he subsequently encountered diculties while attempting to utilize the https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2092/eng@2026-09-30 2

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CTS platform; and that he lacked legal representation due to nancial constraints. Those averments have remained substantially unchallenged. 10. This Court cannot overlook the practical diculties often experienced by incarcerated inmates in accessing legal representation and navigating appellate processes. While imprisonment alone does not constitute sucient reason for delay, the surrounding circumstances in a particular case remain relevant in determining whether a satisfactory explanation has been furnished. 11. As regards the intended appeal, it is unnecessary at this stage to make any denitive pronouncement on its merits. Suce to state that the applicant seeks to challenge the dismissal of his rst appeal arising from a conviction for the oence of delement and nothing placed before me demonstrates that the intended appeal is frivolous. 12. On the question of prejudice, the respondent has expressly stated that it does not oppose the application and has acknowledged that no prejudice will be occasioned to it should the Court enlarge time. 13. Taking into account the relatively short period of delay, the explanation oered by the applicant, his status as an incarcerated inmate and appearing in person, and the respondent's position that the application is unopposed, I am satised that this is a proper case in which to exercise this Court's wide and unfettered discretion in favour of the applicant. 14. Accordingly, I nd merit in the Notice of Motion dated 5th August, 2026 and hereby allow it. The applicant shall le and serve the Notice and Record of Appeal out of time within the next forty-ve (45) 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 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2092/eng@2026-09-30 3

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