https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1206

Eskuku v Republic (Criminal Application E008 of 2026) [2026] KECA 1206 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1206 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Application E008 of 2026 WK Korir, JA June 26, 2026 Between Akuta Esekon Eskuku Applicant and Republic Respondent (Being an application for extension of time to appeal against the conviction and sentence of the judgment of the High Court of Kenya at Lodwar (Riechi, J.) dated 17th November 2017 in HCCRA No. 44 of 2017) Ruling 1.Through the notice of motion dated 10th March 2026, Akuta Esekon Eskuku, seeks leave to file an appeal out of time against a decision delivered on an undisclosed date in Lodwar High Court Criminal Appeal No. 44 of 2017. He avers that the failure to file an appeal within the stipulated period was due to the delay by the High Court in transmitting the typed proceedings and judgment. 2.In response, learned Principal Prosecution Counsel, Mr. Okaka, while acceding to the application through submissions dated 29th April 2026, relied on Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR for the proposition that the law does not set out any minimum or maximum period of delay and all that is required is for the delay to be satisfactorily explained. 3.The factors to be taken into account in determining whether or not to allow extension of time for filing an appeal were summarized by the Supreme Court in Salat vs. Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) as follows:“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:1.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;2.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5.Whether there will be any prejudice suffered by the respondents if the extension is granted;6.Whether the application has been brought without undue delay; and7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 4.The order to enlarge time for filing an appeal must be earned and as was stressed by the Supreme Court in Salat vs. Independent Electoral and Boundaries Commission & 7 others (supra), extension of time is not a right of a litigant against a court and being a creature of equity, the remedy is only available where the applicant lays a basis that he was not at fault in letting the time to lapse. An applicant should therefore place before the court sufficient material that will assist it in exercising discretion in the applicant’s favour. 5.The applicant herein has not indicated the date of the delivery of the judgment he intends to appeal against so that I can assess the period of delay in order to determine whether the period of delay has been satisfactorily explained. The only observation I make is that the decision the applicant intends to appeal was made in an appeal filed in 2017. The applicant has not explained why he did not file a notice of appeal which does not require availability of the judgment or proceedings before it can be filed. He has not stated when he applied for the proceedings from the High Court and when those proceedings were supplied. His averment that the High Court delayed in supplying proceedings is bare and cannot assist me to judiciously exercise my discretion in his favour. What he has done is to shift blame to the High Court without explaining his role in the delay. He has therefore failed to satisfactorily explain the cause of the delay in filing an appeal. 6.In the circumstances, I find the application to be unmerited and dismiss it. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF JUNE 2026.W. KORIR…………………………JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR