Mateyo v Republic (Criminal Application E036 of 2026) [2026] KECA 1416 (KLR) (10 July 2026) (Ruling)

Mateyo v Republic (Criminal Application E036 of 2026) [2026] KECA 1416 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1416 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Application E036 of 2026 B Ongaya, JA July 10, 2026 Between Amos Rioba Mateyo Applicant and Republic Respondent (Being an application for extension of time to file a notice of appeal out of time, against the decision of the High Court of Kenya at Kisii (Odero, J.) in HCCRA NO. E040 OF 2023) Ruling 1.Before the Court is the applicant’s notice of motion dated 14th April, 2026, seeking orders that this Honourable Court be pleased to allow this application for extension of time to file a notice of appeal out of time, and any other order the Court may deem fit and expedient. 2.The application is supported by the applicant’s affidavit, to the effect that he was convicted and sentenced to 45 years’ imprisonment for the offence of incest. He appealed to the High Court at Kisii, which upheld the conviction and sentence. That when he sought to file a notice of appeal through the CTS, they could not find a direct link to the Court of Appeal at Kisumu. That he also could not hire an advocate to follow up on his case owing to his poor family background. That the prison administration later assisted him in filing the instant application on this Court’s CTS. He thus sought an extension of time to file a notice of appeal out of time and for costs of the application to be waived, as he was making the application as a pauper incarcerated at Kisii Main Prison. 3.In his written submissions dated 10th June, 2026, the applicant urged that the lapse of time was not his own omission but due to challenges in communication and lack of representation by counsel. That the respondent will not be prejudiced if the instant application is allowed, and that his intended appeal has chances of success. 4.The respondent did not respond to the application. 5.This application was listed before me on 1st July, 2026 as a chamber matter in the absence of the parties or their advocates, and is to be disposed of by way of written submissions. The hearing notice exhibited that the parties were served on 8th June, 2026. However, the respondent did not file any response or submissions towards the application. 6.This Court has unfettered discretion under Rule 4 of the Court of Appeal Rules to consider an application for extension of time. The locus classicus case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 laid down the parameters to be considered in an application for extension of time as follows;“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.” 7.The applicant’s reason for the delay in lodging the notice of appeal within 14 days as prescribed in rule 61 of the Court of Appeal Rules is plausible and not opposed. The difficulty is about failure to promptly get a link to file the notice of appeal electronically on the e-filing court portal. Indeed there is no shown prejudice the respondent will suffer if the application is allowed. There is nothing to suggest that the proposed appeal would be frivolous. 8.In the premises the application is allowed and the applicant is granted leave to lodge the notice of appeal within 21 days from the date of this ruling. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.B. ONGAYA.................................JUDGE OF APPEALI certify that this is a true copy of the original.Deputy Registrar