https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11440

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT HOMA BAY** **CRIMINAL DIVISION** **MISC. CRIMINAL APPLICATION NO.E002 OF 2026** **BETWEEN** **DIRECTOR OF PUBLIC PROSECUTIONS ::::::::::::::::::::::::::::::::::: APPLICANT** **AND** **TOM OTIENO ODHIAMBO :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT** **RULING** **[1]** Vide the Notice of Motion dated 19th January 2026, the applicant/director of Public Prosecution prays for leave to file an appeal out of time against the decision of the magistrate’s court delivered on 25 August 2025 in PMC’s case No.E131 of 2023 at Ndhiwa which resulted in the acquittal of the respondent, **Tom Otieno Odhiambo,** for the offence of Arson, contrary to Section 332(a) of the Penal Code. **[2]** The particulars of the charge were that on the 28th February 2023 at Bongu Village in Ndhiwa within Homa Bay county the respondent jointly with others not before the court willfully and unlawfully set fire to a dwelling house belonging to Isaac Obayo Oluoch together with property therein all valued at kshs.3,677,900/-. Any party aggrieved by the decision had a right of appeal within fourteen(14) days of the delivery of the judgment. **[3]** Apparently, the applicant did not file an appeal within the prescribed period of time even though the actual complainant in the case was aggrieved by the impugned decision of the lower court. This explains why the present application was presented before this court on the basis of the grounds set out in the Notice of Motion dated 19th January, 2026 as buttressed by the averments contained in the supporting affidavit deponed by the Ass. Director of Public Prosecutions, **Ms Brenda Oduor** on the 19th January 2026. **[4]** The respondents, however, opposed the application on the basis of the grounds and averments contained in his replying affidavit dated 2nd June 2026. The hearing of the application was by way of written submissions. Both parties filed their respective submissions for and against the application. These have been given due consideration by this court in the light of the supporting grounds and those in opposition thereto. **[5]** At most the respondents’ opposition to the application turns on the question of delay in filing not only the appeal, but also the application itself. Thus, the respondent contends that the applicant had a right to file appeal pending availability of copies of the proceedings and judgment and although the typed proceedings and judgment were ready and certified as at the 9th October, 2025, the applicant chose to sleep on his right of appeal, only to re-surface much later in the month of January this year to bring the present application. **[6]** The respondent further contends that the delay in filing the appeal was inordinate and would be substantially grievous and prejudicial to him, hence the present application ought to be dismissed in as much as the intended appeal has minimal chances of success and in a waste of judicial time. The respondent also contends that his application is brought in bad faith to frustrate and drag him back to court. **[7]** Basically, an application of this nature would be anchored on the provisions of **Section 349 of the Criminal Procedure Code (Cap 75 LOK),** but the principle upon which it may or may not be granted are similar to those applicable in matters falling within the Civil Procedure Act and the Rules made there under Section 349 of the CPC Provides for limitation of time of appeal in the following terms: **“An appeal shall be entered within fourteen days of the date of the order or sentence appealed against: Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record within a reasonable time of applying to the court therefore”.** **[8]** In terms of the foregoing provision an applicant is required to show satisfactory and good grounds for exercise of the court’s discretion in his favour in granting the necessary leave to file appeal out of time. Generally, courts have the discretion to grant leave to appeal out of time as long as the application is made in good faith and does not prejudice a party involved in the case. **[9]** Extension of time to file an appeal is an equitable remedy available to a deserving party not as a right, but at the discretion of the court. Therefore, a party seeking extension of time has the burden to lay a proper basis to the satisfaction of the court for grant of such extension. However, whether or not to extend time is a factor to be considered on a case to case basis **[10]** In the case of **Utalii Transport Co. Ltd & 3 others Vs NIC Bank Ltd and Another [2014] eKLR**, The court stated that:- **“Whereas there is no precise measure of what amounts to inordinate delay and whereas what amounts to inordinate delay will differ from case to case depending on the circumstances of each case”, the subject matter of the case; the nature of the case; the explanation given for the delay; and so on and so forth. Nevertheless, inordinate delay should not be difficult to ascertain once it occurs; the litmus test being that it should be an amount of delay which leads the court to an inescapable conclusion that is inordinate and therefore, in excusable. On applying court’s mind on the delay, caution is advised for courts not to take the word “inordinate” in its dictionary meaning, but in the sense of excessive as compared to normality”.** **[11]** Thus all the surrounding circumstances including the reasons for the delay must be considered in determining whether there has been inordinate delay in filing an appeal. As regards the question of prejudice, a court is required to look at the circumstances accruing and recognize the overriding principle that justice must be done. Prejudice or lack of it is a highly relevant matter in considering justice of the case and whether the delay will cause real harm to the other party. (**See, Touring Cars (K)Ltd & Another Vs Ashok, Kumar N. Mankenji Civil Application NO. 78 of 1998(C/A).** **[12]** In **Janet Ngendo Kamau Vs Mary Wangari Mwangi Civil application No. Nai 338 of 2002 (C/A)**, it was held that:- **“Unless there is fraud, intention to overreach, inordinate delay or such other circumstances dissenting a party to the exercise of the court’s discretion, the court should in so far as it may be reasonable prefer, in the wider interest of justice to have a case decided on its merits ....... The consideration that one, case should not hang over the heads of parties, indefinitely must be weighed against the wider interests of justice namely that where possible cases, must be brought to a close after a hearing on the merits”.** **[13]** In this case, the reasons proffered by the applicant for the delay in fling the appeal within the prescribed period of time may not be treated as being unreasonable in as much as they point towards logistics hiccups, delayed communication between the applicant and the actual complainant on the status of the matter and instructions to forge an appeal as well as delays in obtaining certified copies of the proceedings and judgment from the court for which the applicant could not be blamed. **[14]** Despite the topic of period of about four (4) months, the circumstances accruing in this case clearly indicate that the delay was not deliberate or intentional or malicious as to attain the tag “inordinate”. And even if the delay was indeed “inordinate” the explanation given by the applicant was satisfactory for exercise of discretion in his favour. **[15]** Although the respondent indicated that he would suffer prejudice if this application is allowed, he did not demonstrate how and in what manner the prejudice would evolve. Unfortunately, the primary objective would be to ensure that justice is done to all the parties by having this matter concluded on the merits after undergoing a complete judicial process from the trial stage to the appeal stages. **[16]** In sum, the present application is hereby allowed. The petition of appeal filed herein on 23rd January, 2026, be treated as having been properly filed. A complete and proper record of appeal be filed and served for admission of the appeal to hearing and for directions on the hearing date and mode of hearing. In that regard, a mention date for directions be fixed forthwith. [Dated & Delivered this **22ND** day of **JULY 2026**] [In the presence of **MR. OYOO** for the applicant/appellant and **M/S MOKUA** for the respondent] **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **HON. J.R. KARANJAH** **JUDGE**