https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1512

Kivagi v Republic (Criminal Application E016 of 2026) [2026] KECA 1512 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1512 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Application E016 of 2026 M Sila, JA July 31, 2026 Between Boniface Mugodo Kivagi Applicant and Republic Respondent (Being an application for extension of time to file an appeal out of time against the Judgment of the High Court of Kenya at Nairobi (G. W. Ngenye-Macharia, J.) dated 14th November 2018 in HCCRA No.69 of 2018) Ruling 1.The applicant, Boniface Mugodo Kivagi, was charged at the Chief Magistrate’s Court at Makadara, in Makadara Sexual Offence Case No. 127 of 2016, with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence were that on diverse dates between the month of August 2015 and 3 September, 2016 at [Particulars Withheld] Area, within Nairobi County, he intentionally and unlawfully caused his genital organ, namely penis, to penetrate the genital organ, namely the anus, of DM, a child aged twelve (12) years. Alternatively, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. He was found guilty of the main charge and sentenced to 20 years imprisonment. Aggrieved by the finding of the trial Court, he appealed against both the conviction and sentence to the High Court at Nairobi, vide Criminal Appeal No.69 of 2018. The High Court (G.W.Ngenye-Macharia J. - as she then was), upheld the decision of the trial court in a judgment dated 14 November 2018. 2.Dissatisfied by the decision of the High Court, the applicant desires to file a second appeal to this Court, but is unable to do so because he failed to lodge his notice of appeal within the stipulated timeline of fourteen (14) days after the date of the High Court judgment as required by Rule 59 (1) of the now revoked Court of Appeal Rules, 2010, which were then operative. 3.Now before this Court is the applicant’s undated notice of motion application seeking extension of time to lodge an appeal out of time. The application is supported by his affidavit irregularly dated 9 April 2069 which I presume is 9 April 2026, where he highlights that his appeal has high chances of success if he is given an opportunity to argue his case. He filed his undated written submissions in which he attributes his failure to lodge an appeal within time to his family, who had allegedly promised to instruct an advocate to lodge and pursue his appeal within the stipulated time, but failed to do so. He submits that upon realizing that his family did not procure legal representation as promised, he now invokes the Court’s discretion to extend time under Rule 4 of the Court of Appeal Rules, 2022. He highlights his plight as follows: that he is a family man bound to be rendered obsolete in life, and that he will be extremely prejudiced and locked out of the benefit of the law provided under Article 50 (2) (q) of the Constitution regarding his right to an appeal. He further implores the Court to extend the time for lodging his appeal, on the basis that the respondent will not be prejudiced, and further, that his intended appeal raises substantial questions of law that need to be determined. 4.The application is unopposed. 5.Rule 4 of the Rules of this Court vests this Court with the unfettered discretion to extend the time to do any act prescribed under the said Rules of the Court. The discretion of the Court in dealing with applications of this nature was elaborated by the Supreme Court in Salat v Independent Electoral and Boundaries Commission & 7 others (Application 16 of 2014) [2014] KESC 12 (KLR) (Civ) (4 July 2014) (Ruling) where the Court held as follows:“85… we derive the following as the under-lying principles that a court should consider in exercise of such discretion: 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; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time. 6.This Court, in the case of Mutiso vs Mwangi, (1999) 2 EA, 231, pronounced itself as follows at page 233:“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 delay; secondly, the reason for 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.I have the foregoing principles in mind as I consider this application.From the authorities, it will be observed that one of the critical factors to be considered is the length of the delay. 8.I note that the High Court judgment was delivered on 14 November 2018, which is more than 7 years to the time the application herein was made. That is a significant period of time which needs to be very well explained. However, my perusal of the affidavit does not provide any reasons for the delay. The explanation given outside his supporting affidavit, in his written submissions, is that he relied on his family’s promise to procure an advocate. The reason ought to be in an affidavit and not elsewhere. 9.But even if I am to consider the reasons given in the submissions, I am not persuaded that they are genuine and valid reasons that would move this court to exercise its discretion in favour of the applicant. Although I am conscious of the hardship and constraints a prisoner faces in trying to procure legal representation, and deciding to proceed pro se amidst limited liberties, the delay of more than 7 years is inordinate. The respondent (read complainant) is also entitled to move on after the time given to lodge an appeal has lapsed and to bring him back after 7 years would certainly cause him extreme prejudice. 10.For reason of inordinate delay, I am not persuaded that this is a fit case to extend time for filing an appeal out of time. The upshot is that this application is dismissed. There will be no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.MUNYAO SILA……………………..………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR