https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1638

Musabiti v Republic (Criminal Application E023 of 2024) [2026] KECA 1638 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1638 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Application E023 of 2024 MN Nduma, JA July 31, 2026 Between James Musabiti Applicant and Republic Respondent (Being an application for extension of time to file an Appeal out of time from the decision of the High Court of Kenya at Eldoret (O. Sewe, J.) delivered on 15th September, 2021 in HCCRA No. 102 of 2019) Ruling 1.James Musabiti, the applicant herein was convicted for the offence of defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act and sentenced. Dissatisfied with the trial court’s judgement, he appealed in Eldoret HCCRA No.102 of 2019 where the same was dismissed on 15th September 2021. Aggrieved by the determination, he intends to file a second appeal to this Court albeit out of time hence the present application dated 5th June 2026. It is supported by the applicant’s undated sworn affidavit. 2.The application came up for hearing on 9th July 2026 and was dispensed with by way of written submissions. 3.The applicant in his written submissions dated 8th July 2026, states that he sent his Notice of Appeal to the High Court within 7 days of the judgement but there was no response, therefore, he could not take the next procedural steps. To support this, the applicant has annexed an undated Notice of Appeal with markings on the top right indicating the same was scanned on 21st September 2021 at 11:00 am. Further, the Notice of Appeal has markings on the left vertical margin indicating the same was filed by Naivasha Maximum Prison under reference E6H9W6V2. The applicant also submits that he relied on his relatives to secure an Advocate but the same has not been forthcoming. 4.The application is opposed by counsel for the respondents, Mr. Okaka, through written submissions dated 8th July 2026. Mr. Okaka submits that the applicant failed to indicate the date of delivery of judgement he intends to appeal against. Mr. Okaka also contends that the applicant did not explain the failure to file or annex a draft Notice of Appeal and to explain when he discovered his relatives were unable to get an Advocate for him. On the basis of the foregoing, he prays for dismissal of the application. 5.I am guided by the provisions of Rule 4 of this Court’s Rules on extension of time as well as the principles set out for grant of the same as alluded to in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] KECA 701 (KLR). The Court held that the following factors should be considered for grant of extension of time; the length of delay, reasons for delay, whether the appeal is arguable and degree of prejudice to the respondent if the application is allowed. 6.The respondent’s contention that the applicant does not state the date of the delivery of judgment is defeated by the fact the same is captured in the applicant’s written submissions. On the issue of delay, the applicant states that he filed a Notice of Appeal on 21st September 2021, while in custody, the decision of the superior court having been delivered on 15th September 2021 but did not receive a response from the court. That his efforts to acquire an advocate through his relatives did not bear fruit and was at a loss on how to follow up his intended appeal. 7.The Court finds the explanation by the applicant reasonable considering that he had little latitude to actively follow up on his case while incarcerated and relied on prison officials and his relatives to facilitate his access to justice. The alleged miscommunication from the court cannot be visited on the applicant. The applicant has attached a copy of the Notice of Appeal to his application and the Court is satisfied that he is deserving of the discretion of this Court to file the Memorandum of Appeal and Record of Appeal out of time. 8.The applicant has annexed a Memorandum of Appeal outlining grounds of appeal and the Court considers same arguable. Furthermore, the respondent has not demonstrated any prejudice to be suffered if the application is allowed since he will have opportunity to defend the appeal. 9.Accordingly, I find that the application has merit and it is hereby allowed. The applicant is granted leave to file and serve his appeal within the prescribed period from the date of this ruling. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.NDUMA NDERI………………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR