https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1421

Oyamo v Republic (Criminal Application E033 of 2026) [2026] KECA 1421 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1421 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Application E033 of 2026 EC Mwita, JA July 10, 2026 Between Brian Omondi Oyamo Applicant and Republic Respondent (Being an application for leave to appeal out of time against the judgment of the High Court of Kenya at Homa BayinHCCRA No E001 of 2025) Ruling 1.Brian Omondi Oyamo, the applicant, was charged before the Principal Magistrate’s court at Oyugis with defilement; tried, convicted and sentenced to 30 years imprisonment and his appeal to the High Court at Homa Bay was dismissed. He has now brought this application dated 7th April 2026, seeking extension of time within which to file an appeal out of time against the judgment of the High Court. 2.The application is premised on the grounds that, after the delivery of the judgment, the applicant prepared a notice of appeal with the help of Prison officers which he filed at the High Court in Homa Bay, but that notice of appeal was not forwarded to this Court. He was later advised to file the notice of appeal electronically through the CTS but Prison officers could not find a direct link for filing a notice of appeal. The applicant who is incarcerated and is representing himself, was not able to follow up on the notice of appeal and, therefore, the reason for the delay in filing his appeal. He now urges this Court to extend time for filing the appeal. 3.The respondent has filed written submissions dated 29th June 2026, acknowledging this Court’s discretionary power to enlarge time as well as the reasons the applicant has advanced for the delay in filing the appeal and does not therefore oppose the application. 4.Rule 4 of the Court of Appeal Rules gives this Court discretion to extend the time limited for the doing of any act authorized or required by the Rules. In Leo Sila Mutiso v Helen Wangari Mwangi [1999] 2 EA 231), this Court statedas 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; third, (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.” 5.The Judgment which the applicant seeks to appeal against, was delivered on a date both the applicant and the respondent do not disclose, but both acknowledge that it was delivered by the High Court of Kenya at Homa Bay while this application was filed on 7th April 2026, making it difficult for this Court to determine whether or not the delay is inordinate. 6.That notwithstanding, the applicant who is incarcerated and self-representing, has stated that he filed a notice of appeal at Homa Bay High Court but the High Court Registry did not transmit that notice of appeal to this Court. The applicant further states that he did not know the procedure for filing a notice of appeal electronically and Prison officers could not be of help in that regard. I also note that the appellant is being held at Kisii Main Prison away from Homa Bay where his appeal was heard which may also explain why it was difficult for him to follow up on the issue of the notice of appeal. 7.Having considered the application and the reasons advanced for failing to file the appeal on time, considering that the application is not opposed and the applicant’s desire to appeal to this Court, I am satisfied that the reasons advanced for the delay in filing the notice of appeal on time have been sufficiently explained. 8.In the circumstances, I hereby allow the application dated 7th April, 2026. The time for filing appeal is hereby enlarged. The applicant is granted leave to filed a notice of appeal within 14 days. The notice of appeal shall thereafter be served within seven days of its filing. The memorandum and the record of appeal shall thereafter be filed within 30 days from the date of filing the notice of appeal. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.E. C. MWITAJUDGE OF APPEALI certify that this is a true copy of original.DEPUTY REGISTRAR.