https://new.kenyalaw.org/akn/ke/judgment/keca/2026/993

Ndichu v Republic (Criminal Application E009 of 2026) [2026] KECA 993 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KECA 993 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Application E009 of 2026 MB Kairaria, JA May 22, 2026 Between James Njuguna Ndichu Applicant and Republic Respondent (An application for extension of time from the judgment of the High Court of Kenya at Nyahururu (R.P.V Wendoh, J.) dated 19th January 2018 in HC.CR.C NO. 65 0F 2017) Ruling 1.James Njuguna Ndichu the applicant was arraigned, convicted and sentenced to life imprisonment for the offence of defilement contrary to Section 8[1] as read with Section 8[2] of the Sexual offences Act No. 3 of 2006 in a judgment delivered by the Hon. Muholi [R.M] in Nyahururu CMCSOA No. 1309/2012. Aggrieved by that decision he appealed against both conviction and sentence at the High Court of Kenya at Nyahururu Criminal Appeal No. 65 of 2017. The appeal was heard and dismissed in its entirety by the Hon. Wendo J in a judgement delivered on 19th January, 2018 in which she upheld both the conviction and sentence. 2.The applicant is dissatisfied with that judgement and wishes to mount a second appeal to the Court of Appeal but finds his route blocked because he failed to file a written notice of appeal within 14 days after delivery of the judgement as required by Rule 61[1] of the Court of Appeal Rules 2022. 3.In a bid to remedy that default he has brought an application for extension of time which was received by the officer in charge of Nyeri Maximum security prison on 3rd October, 2025 in which he prays that the Court be pleased to extend time for lodging his Notice of appeal. In the undated affidavit in support of the application, the applicant avers that he filed a second appeal in time while serving his sentence at Nyahururu G.K prison through the prison documentation office but did not receive a number assigned to his appeal. He was transferred to Nyeri Maximum Prison where he is currently held. He says that he later learnt that he does not have an appeal pending before this Court. He still desires to pursue his appeal against the High Court judgment which upheld both conviction and sentence hence his current application. 4.The applicant reckons that his intended appeal has high chance of success and begs this court to grant him a chance to appeal out of time contending that it is in the interest of justice that the court finds in his favor since it was not his wish to fail to lodge his notice of appeal within the prescribed period. 5.The Director of Public Prosecutions [respondent] while decrying the delay in bringing the application as inordinate he nevertheless does not strongly oppose the application for extension of time to appeal in his written submissions dated 28th April 2026. Basically, the respondent quite properly in my view acknowledges that the applicant is not to blame for the delay in filing his notice of appeal. In that regard, the Learned Prosecution Counsel, H. Kalekya Kitheka submits as follows at par.6:“The respondent notes that the applicant was, at all material times in custody and therefore operated under significant constraints in accessing legal advice, court documents and the procedural mechanisms necessary for the timely filing of an appeal. It is not in dispute that incarceration may present practical challenges that are beyond the Applicant’s immediate control.’’ 6.I agree that this is indeed the perennial predicament of many a convict such as the applicant seeking to pursue his or her right of appeal in person from behind prison bars. For most of them structural and systemic delays continually impede the expeditious disposal of their appeals sometimes completely derailing the hearing of the appeals altogether until prison terms are served and the court instead of hearing the appeal has regrettably to mark it as having been overtaken by events. In manner of speaking the lives of such prisoners serving term are suspended in between hope and despair in some kind of psychological purgatory not knowing the time or the hour when their appeals will be heard and decided one way or another. 7.I have considered the grounds of the application and I am satisfied that the reasons given for the delay are valid and plausible. I find that the applicant has met the legal criteria for the grant of extension of time under rule 4 of the Court of Appeal. Accordingly, I exercises my discretion in favor of the applicant and extend time for filing the notice of appeal. I find merit in the application and direct that the applicant shall file the notice of appeal within 14 days from the date of delivery of this ruling. DATED AND DELIVERED AT NAKURU THIS 22ND DAY OF MAY, 2026.MURUNGI B. KAIRARIA..................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar