https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1417

Basweti alias Manager v Republic (Criminal Application E038 of 2026) [2026] KECA 1417 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1417 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Application E038 of 2026 B Ongaya, JA July 10, 2026 Between George Morara Basweti alias Manager Applicant and Republic Respondent (Being an application for extension of time to file the Notice of Appeal out of time, against the Judgment of the High Court of Kenya at Nyamira (Okwany, J.) in HCCRA No. E064 OF 2024) Ruling 1.Before the Court is the applicant’s notice of motion dated 21st April 2026, seeking the order that the application be allowed for extension of time to enable the applicant to file the notice of appeal out of time. 2.The application is supported by the applicant’s affidavit in which he states that following his conviction and sentence for the offence of defilement, he appealed the decision but the High Court at Nyamira upheld his 40 years’ imprisonment. That he experienced trauma and confusion after his 40-year sentence was upheld. He contended that the delay in filing an appeal was unintentional, as he lacked legal representation to assist with the filing process. Further, that his poor family background prevented them from following up on the matter. He prayed for the costs of the application to be waived. 3.This application was listed before me on 1st July, 2026 as a chamber matter for consideration in the absence of the parties or their advocates. It is for determination on the basis of the material on record. 4.The applicant filed written submissions dated 10th June, 2026. He asserted that poverty and an inability to afford legal representation were the primary factors for the delay. He expressed remorse and requested that the Court grants him an opportunity to file his appeal out of time in the interest of justice and fairness. He argued that granting the application would not prejudice the respondent. He also requested the Court to either assist him in filing the appeal or direct the High Court Sub- registry to honour the filing. 5.The respondent filed submissions dated 15th June, 2026, asserting that they do not oppose the application for extension of time. 6.I have considered the parties’ submissions. 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 has given a credible reason for the delay and the respondent has not opposed the application as no prejudice exists and the appeal is arguable. 8.In the premises and by consent of the parties, time is hereby extended for the applicant 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. ONGAYAJUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR