https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9960

Achala v Republic (Miscellaneous Criminal Application E031 of 2026) [2026] KEHC 9960 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 9960 (KLR) Republic of Kenya In the High Court at Vihiga Miscellaneous Criminal Application E031 of 2026 RN Nyakundi, J July 9, 2026 Between Fredrick Luvaga Achala Applicant and Republic Respondent Ruling A. Introduction 1.Before this Court is a Notice of Motion dated 15th May 2026, brought by the Applicant in person pursuant to Article 165(3)(a) of the Constitution of Kenya, 2010 and Section 349 of the Criminal Procedure Code (Cap. 75, Laws of Kenya), seeking, in the main, orders that:(a)leave be granted to the Applicant to file his appeal out of time;(b)the appeal, once filed, be deemed as properly filed; and(c)the filing fees be waived, and the Applicant be produced in court at the hearing thereof. 2.The application is supported by the grounds on the face of the Motion and the Applicant’s sworn affidavit of even date. In brief, the Applicant deposes that he was arrested, charged, tried, convicted and sentenced to ten (10) years’ imprisonment for the offence of Attempted Defilement contrary to Section 9(1) as read with Section 9(2) of the Sexual Offences Act, No. 3 of 2006, in Vihiga PM’s Court Criminal Case No. SO E021/2024. He avers that his failure to lodge an appeal within the statutorily prescribed period of fourteen (14) days was occasioned by his inability to obtain a copy of the judgment and/or order appealed against; that he is a layman without legal representation; and that being incarcerated, he lacked both the knowledge and the means to prosecute his appeal in time. B. Analysis and Determination 3.I have considered the application, the supporting affidavit and the circumstances of the Applicant. The Applicant is a lay, unrepresented, incarcerated person. He attributes the delay to his inability to obtain copies of the judgment and proceedings, lack of legal knowledge and lack of legal representation. These explanations are plausible and are precisely the species of impediment contemplated by the proviso to Section 349 of the Criminal Procedure Code. It is notorious that convicts in custody encounter genuine practical difficulties in obtaining court records and in navigating appellate procedure without counsel. The delay, in the circumstances, has been reasonably explained and cannot be characterised as inordinate, deliberate or contumelious. 4.As to the intended appeal, it is not for this Court at this stage to interrogate its merits; it suffices that the Applicant, having been convicted and sentenced to a substantial term of ten (10) years’ imprisonment, has a constitutionally guaranteed right to test that conviction and sentence on appeal. It cannot be said, on the material before me, that the intended appeal is frivolous or an abuse of the process of the court. 5.On the question of prejudice, the Respondent stands to suffer none that cannot be compensated or managed by expeditious directions, whereas the Applicant would suffer irreparable prejudice if the doors of the appellate court were shut against him on account of a procedural time-bar. Where, as here, a real risk of injustice is weighed against a curable procedural lapse, the scales must tilt in favour of hearing the intended appeal on its merits, consistent with Articles 48, 50(2)(q) and 159(2)(d) of the Constitution. 6.In the interest of justice, and mindful that the Applicant acts in person and that this matter ought not to be prolonged unnecessarily, I find that the Applicant has demonstrated good cause for the delay in lodging his appeal. C. The Law 7.The right of appeal from a subordinate court is conferred by Section 347 of the Criminal Procedure Code, while Section 349 requires that an appeal be lodged within fourteen (14) days of the date of the order or sentence appealed against. The proviso to Section 349 is, however, instructive. It empowers this Court to admit an appeal out of time where good cause is shown, and expressly provides that an appeal may be admitted where the delay is attributable to the appellant’s inability to obtain a copy of the judgment or order appealed against and a copy of the record within a reasonable time. 8.That statutory discretion must further be exercised in light of the Constitution: Article 50(2)(q) guarantees every accused person the right, if convicted, to appeal to or apply for review by a higher court; Article 159(2)(d) enjoins courts to administer justice without undue regard to procedural technicalities; and Article 48 obliges the State to ensure access to justice for all persons. 9.The factors that guide a court in an application for extension of time are now well settled. They include: the length of the delay; the reason(s) for the delay; the arguability or chances of success of the intended appeal (without conducting a mini-trial thereof); and the degree of prejudice, if any, that the respondent would suffer if the application were granted. The discretion is unfettered, and each case must turn on its own facts. 10.The Criminal Procedure Code provide for a timetable for the conduct of litigation and must be obeyed by the litigant pursuing their right at the superior court. It is trite that where there has been non-compliance with the timetable of 14days to file one’s appeal the court has the discretion to extend time by revisiting the issues which are mainly evidentially constituting the length of the delay, the reasons for the delay, whether there is an arguable appeal and the degree of prejudiced likely to be suffered by the applicant if the extension of time is not allowed. The court in the Seventh Day Adventist Church East Africa Limited & Another v M/S Masosa Construction Company Civil Application No Nai. 349 of 2025 made the following observations;“As the discretion to extend time is unfettered, there is no limit to the number of factors the Court would consider so long as they are relevant; the period of day, (possibly) the chances of appeal succeeding if the application is granted, the degree of prejudice to the Respondent if the application is granted, the effect of the delay on public administration, the importance of compliance with the time limits, the resources of the parties; whether the matter raises issues of public importance are all relevant but not exhaustive factors…In an application for extension of time, each case must be decided on its own peculiar facts and circumstances and it is neither feasible nor reasonable to lay down a rigid yardstick for measuring periods of delay as explanations for such delays are as many and varied as the cases themselves…The ruling stricking out the appeal is not is not only necessary for exhibiting to the application for extension of time but also for consultations between the applicant’s counsel and their clients and the fact that the ruling was returned to Nairobi for corrections is a reasonable explanation for the delay…Where the Respondent has already recovered all the decretal sum and costs attendant to the litigation, the right to appeal being a strong right which is rivalled only to the right to enjoy the fruits of judgment, no prejudiced would be cause to the respondent who has enjoyed his rights in full if an opportunity is given to the applicants to enjoy theirs too, even it is on a matter of principle’ 11.Thereafter the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR it was held as;i.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 courtii.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the courtiii.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basisiv.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court 12.From the above extract and for the need of justice to be done to the parties I have no doubt that the core business of this court is to deliver substantive justice to vindicate fundamental rights and freedom of which individuals within our borders. There is therefore merit to grant the application for extension of time to pave way for the applicant to canvass his appeal on the merit. D. Disposition 7.Consequently, the Notice of Motion dated 15th May 2026 is merited and is hereby allowed on the following terms:i.Leave is hereby granted to the Applicant to file his appeal against conviction and sentence in Vihiga PM’s Court Criminal Case No. S.O E021/2024 out of time.ii.The Applicant shall file and serve his Memorandum of Appeal within twenty-one (21) days from the date of this Ruling, whereupon the appeal shall be deemed as duly and properly filed within time.iii.The Deputy Registrar shall facilitate the supply to the Applicant, free of charge, of copies of the judgment, proceedings and record of the trial court to enable him prosecute the appeal.iv.The Applicant, being a person in custody acting in person, is exempted from payment of the requisite filing fees.v.The Applicant shall be produced in court at the hearing of the appeal, and the matter shall be mentioned before the Deputy Registrar within thirty (30) days for directions on the hearing of the appeal. 8.It is so ordered. DATED AND DELIVERED AT VIHIGA VIA CTS, WHATSAPP AND EMAIL THIS 9TH DAY OF JULY 2026………………………………R. NYAKUNDIJUDGE