https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1347

Nyandege v Republic (Criminal Application E025 of 2026) [2026] KECA 1347 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KECA 1347 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Application E025 of 2026 A Ali-Aroni, JA July 7, 2026 Between Isack Ouso Nyandege Applicant and Republic Respondent (Being an application for extension of time to file and serve a notice of appeal and for leave to appeal out of time from the Judgment of the High Court at Nairobi (Maina, J.) delivered on 15th December 2022 in ACECA No. 4 of 2022 (as consolidated with ACEC Appeal No. E005 of 2022) Ruling 1.Before the Court is an application by way of a notice of motion dated 28th April 2026 brought under Article 159(2)(d) of the Constitution, rule 4 of the Court of Appeal Rules, 2022 (‘the Rules’), seeking extension of time to appeal out of time, and for the notice of appeal dated 7th April 2025 be deemed to have been properly filed and served. 2.The application is predicated on the grounds on the face of the application and the applicant’s affidavit sworn on 28th April 2026, in which he deposes that he was charged before the Chief Magistrate's Court at Homabay in Ethics & Anti-Corruption Case No. 1 of 2018 with two counts, and in a judgment delivered on 14th June 2022 the trial court convicted him and imposed a fine of Kshs. 7,500,000/, in default a jail term of five (5) years; he challenged the decision in the High Court at Milimani, Criminal Appeal (ACECA) No. 4 of 2022 as consolidated with ACEC Appeal No. E005 of 2022 and judgment was delivered on 15th December 2022 dismissing the appeal and upholding the trial court's conviction and sentence; following the judgement he remained incarcerated until 30th May 2025; during the said period, he lacked the means and resources to instruct counsel or lodge a notice of appeal within the prescribed timelines; he was also ill almost throughout the period of his incarceration, and was on and off hospital. Further, his economic position and that of his family fell to the point where his 2 children had to defer their college studies; upon his release on the 30th May 2025, he dealt with the most pressing issues of his deteriorating health, and reinstating of his children's' education; thereafter, he acted expeditiously and instructed his counsel now on record to file this application, since he could no longer trace his former counsel; the delay was not deliberate or due to indolence, but was occasioned by circumstances beyond his control. 3.He deposes further, that the main contention, despite having fully served the sentence, is to have the Court address itself on sections 45(1) and 48(1)(b) of the Anti-Corruption and Economic Crimes Act, especially on the condition attached to the sentence in section 48(1)(b), and whether the same condition, which is mandatory, was established and proved against him, and the importance and position of that condition in sentencing; there shall be no prejudice on the respondent in granting this order as he shall merely be exercising his right of appeal, and has already served his sentence fully; it is in the interests of justice, fairness, and in line with his constitutional right to a fair hearing that the application be allowed. 4.Learned counsel for the applicant filed submissions and a list of authorities both dated 3rd July 2026 and outlines the legal framework governing the Court's discretion to extend time under Rule 4 of the Rules. Counsel acknowledges that the discretion is broad but must be exercised judicially and in accordance with established principles. He relies principally on the Supreme Court decision in Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR), which established that extension of time is an equitable remedy rather than an automatic right and that the applicant bears the burden of providing a satisfactory explanation for the delay while demonstrating that no undue prejudice will be occasioned to the opposing party. 5.He also cites Thuita Mwangi vs Kenya Airways Ltd [2003] KECA 201 (KLR), where the Court identified relevant considerations including the length of delay, the explanation offered, the arguability of the intended appeal, the prejudice to the respondent, the importance of adherence to procedural timelines, and the broader interests of justice. Additionally, reliance is placed on Athuman Nusura Juma vs Afwa Mohamed Ramadhan [2016] KECA 395 (KLR), for the proposition that whether the intended appeal has merits or not is not an issue determined with finality by a single judge. 6.Counsel equally argues that every relevant factor herein favours the exercise of the Court's discretion. As for the period of delay, the applicant’s imprisonment, inability to access legal counsel, lack of financial resources, and subsequent medical and family obligations provide a complete and credible explanation. 7.On the merits of the intended appeal, counsel submits that the draft memorandum of appeal raises an important legal question concerning the interpretation and application of sections 48(1)(b) and 48(2) of the Anti-Corruption and Economic Crimes Act, specifically whether the mandatory additional fine imposed under those provisions was lawfully imposed in the absence of proof of a quantifiable benefit or loss and whether the statutory prerequisites for such a sentence were satisfied. Counsel emphasizes that the respondent itself had raised issues concerning the interpretation of the same statutory provisions during its cross-appeal before the High Court, thereby demonstrating that the legal questions remain unsettled and are neither frivolous nor hopeless. Counsel therefore contends that the intended appeal presents genuine issues of law worthy of determination by this Court. Counsel further argues that granting the application would occasion no prejudice to the respondent. 8.Learned counsel for the respondent filed submissions dated 3rd July 2026 and opposes the application, arguing that the applicant has failed to satisfy the legal threshold for the exercise of the Court’s discretion under rule 4 of the Rules. Counsel submits that although rule 4 grants the Court discretion to extend time, that discretion must be exercised judicially and in accordance with well-established principles. Relying on Thuita Mwangi vs Kenya Airways Ltd (supra) counsel argues that the Court must consider the length of the delay, the explanation offered for the delay, the prospects of success of the intended appeal, and the prejudice likely to be suffered by the respondent. Applying these principles, counsel submits that judgment was delivered on 15th December 2022, requiring the applicant to file a notice of appeal by 29th December 2022. However, the applicant only sought to file the notice dated 28th April 2026, representing a delay of approximately three years and four months. 9.Counsel argues that such an extraordinary delay, demands a compelling and satisfactory explanation. Citing Muya vs Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya [2022] KESC 37 (KLR) and Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet [2018] KECA 701 (KLR), counsel asserts that although the law does not prescribe a fixed period of delay it requires every delay to be plausibly and satisfactorily explained before the Court’s discretion can be invoked. 10.Counsel further argues that the applicant’s explanation is inadequate and unsupported by evidence. Although the applicant claims he lacked resources to engage an advocate during incarceration, he has produced no evidence demonstrating any effort to obtain legal representation. Moreover, after his release from prison on 30th May 2025, the applicant states that his priorities were addressing his health concerns and reinstating his children’s education. 11.Counsel also faults the applicant for failing to utilize the mechanisms available to incarcerated persons wishing to appeal. Specifically, the applicant did not file a notice of appeal using Prison Form 68B, which is ordinarily facilitated by prison authorities, nor did he invoke Rule 113 of the Court of Appeal Rules by filing a second appeal through the Deputy Registrar, a procedure that enables indigent appellants to seek waiver of court fees and assistance in preparing the record of appeal. Counsel submits that the applicant has therefore failed to demonstrate diligence or that he was genuinely prevented from pursuing his appeal within time. 12.On the merits of the intended appeal, counsel submits that the applicant has failed to demonstrate the existence of an arguable appeal or exceptional circumstances warranting the grant of leave. Citing Daniel Dominic Karanja vs Republic [1986] KECA 37 (KLR), counsel argues that the Court has consistently held that the overriding consideration is whether the intended appeal has overwhelming chances of success or whether exceptional or unusual circumstances justify the relief sought. Counsel stresses that ordinary personal hardships, such as ill health, advanced age, or family responsibilities, do not constitute exceptional circumstances capable of justifying extension of time. 13.It is further submitted that any medical challenges experienced by the applicant could have been adequately managed within the prison medical system or through referral to public health facilities. Counsel also maintains that the prosecution’s evidence at trial was overwhelming, properly corroborated, and sufficient to sustain the conviction reached by both the trial court and the High court. On these grounds, counsel urges the Court to find that the application has no merit and accordingly dismiss the application for extension of time. 14.I have considered the application, the affidavit in support, the rival submissions by counsel and the law. The application invokes this Court's discretionary jurisdiction under Rule 4 of the Rules to extend time for filing and serving a notice of appeal and to grant leave to appeal out of time. 15.The principles governing the exercise of that discretion are now well settled. In Leo Sila Mutiso vs Rose Hellen Wangari Mwangi [1999] 2 EA 231, this Court held that, in exercising its discretion under Rule 4, the Court considers, among other factors, the length of the delay, the reason for the delay, the possible chances of the intended appeal succeeding if the application is granted and the degree of prejudice to the respondent. 16.The beginning point, before considering other factors brought up, is whether the delay of three years and more has been satisfactorily explained. There is no dispute that the delay is substantial. Judgment was delivered on 15th December 2022, whereas the present application was filed on 28th April 2026. It is commonplace for inmates to be accorded facilities in prison to pursue their appeals. As the respondent rightly posited, the applicant did not demonstrate that he attempted to use the available resources within the prison facilities to initiate his appeal, nor did he seek a waiver of any fees payable. On the claim of ill health, the medical evidence annexed to the application does not demonstrate any chronic illness that would have prevented the applicant from pursuing the appeal for such a long period. I must say, resoundingly, that the delay is inordinately long and the explanation insufficient to sustain the prayer for an extension of time. 17.On the merit of the intended appeal, and without appearing to go into the merits of the same, a cursory look as observed by the first appellate court, sentencing is a matter of discretion; secondly, as circumscribed by section 361 of the Criminal Procedure Code, it is outside the jurisdiction of this Court as the question of sentence is regarded as a matter of fact and also bearing in mind that the sentence meted out was lawful as prescribed by law. 18.In the end, I decline to extend the time as prayed and dismiss the application. DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF JULY, 2026.ALI-ARONI…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR