https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6790

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CRIMINAL MISC APP NO. E005 OF 2026** **IN THE MATTERS OF SECTION 349 OF THE CRIMINAL PROCEDURE CODE CAP 75 LAW OF KENYA** **AND** **IN THE MATTERS OF ARTICLES 50(2)(Q), 22, 23 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MIATTERS OF ROBBERY WITH VIOLENCE CONTRARY TO SECTION 296(2) OF THE PENAL CODE** **JOSEPH MBEA ACHOTI Alias ZEDDY………………………………….APPLICANT** **VERSUS** **REPUBLIC……………………………………………………………..……RESPONDENT** *(Being an application for appeal out of time from the orders, decisions and findings of Hon Jacinta A. Owiti (Mrs) PM. Judgment delivered on 20.06.2018)* **Coram: Before Justice R. Nyakundi** **Mr. Leina Prosecution Counsel for the State** **RULING** **Introduction** 1. The background is that the Applicant was arraigned in Court on 2nd October 2018 charged with the offence of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code. Particulars of offence: 1. On the 27th day of Septebmer 2017 at around 1200hrs at Ebumbaye village Esabalo Sub Location within Vihiga County jointly with others not before Court while being armed with dangerous weapons namely pangas and torches robbed Christine Khagai Otuoma of her handbag brown in colour, a phone charger, assorted body creams, all valued at Kshs 12000/= and immediately before or immediately after the time of such robbery used violence on the said Christine Khagai Otuoma. 2. It is from these facts that the Applicant was tried by the State and eventually found guilty, convicted and sentenced by the learned trial Magistrate as follows: “Having analyzed the evidence on record I find that the Prosecution has failed to prove its case against Accused 2 and Juvenile beyond any reasonable doubt hence given the benefit of doubt and acquitted in Counts 1, 2 and 3. DW2 is acquitted in the alternative charge. However I find that the Prosecution has proved its case against DW1 (Accused 1) beyond any reasonable doubt hence find him guilty in Counts 1, 2 and 3 in accordance with Section 215 of the Criminal Procedure Code. The Probation Officers Report dated 9/7/2018 is hereby perused and content noted. The report is suitable to him. However, the law regarding Section 296(2) of the Penal Code has not been amended. The Court hereby proceeds to sentence the Offender to death in accordance with Section 296(2) of the Penal Code. Right of appeal 14 days explained. 1. The record speaks for itself that the Applicant was cautioned to file his appeal within 14 days but as the following application demonstrates, he did not comply with the timeline hence why he is before this Court through the motion herein under. 2. Before this Court is a Notice of Motion dated 12th February 2026, the Applicant seeks the following orders: 3. May this court be pleased to hear and determine this application. 4. May this court be pleased to grant the applicant a leave to appeal out of time. 5. May this court certify this application urgent and hear it on priority basis. 6. May this court waive any fee/cost involved and see to it that the applicant shall be present at the hearing thereof. 7. The application is based on grounds that: 8. The applicant's right to appeal 9. The applicant's appeal raises points of law and that have high chances of success 10. The delay caused due to case backlog in the Kakamega High Court in the previous appeal, a file that was later sent to Vihiga High Court that made new directions that I should make afresh appeal. 11. More grounds in the sworn affidavit and others to be at the hearing thereof 12. In support of the application is the annexed affidavit of the Applicant who deponed as follows: 13. That I am a Kenyan male adult of sound mind. hence competent and indisposition to make an oath and swear this affidavit. 14. That I was arrested. charged, convicted and sentenced to serve a death sentence in an offence of Robbery with violence contrary to Section 296(2) of the Penal Code. 15. That I wish to appeal against the same based on my principal grounds of law that have overwhelming chances of' success. 16. That the case was not proved beyond a reasonable doubt standard. 17. That the doctrine of recent possession was not proved due to unacceptable search and recovery done by non-police officers and without search warrant. 18. That I will suffer irreparable loss if orders sought will not be granted. 19. Based on the above, this Court is mandated to answer the question as to whether the Applicant has met the threshold for extension of time to file his appeal. **Decision** 1. In our jurisdiction, to file an appeal out time one must formally apply for an extension of time under Section 349 of the Criminal Procedure Code or Court of Appeal Rules. The Courts evaluate this kind of applications based on the length of the delays, the reasons provided by the Applicant, prejudice to the Respondent and the appeal’s prospect of success. 1. The very concise guiding principles on extension of time have been extensively developed under the civil branch of law but they apply in *pari materia* and *mutatis mutandis* in the province of criminal law. As the following authorities do demonstrate: In the case of Raila Odinga v IEBC Petition No. 5 of 2013 the Supreme Court while addressing the same set of facts on exercise of discretion to extend timelines which have already lapsed within the scheme of legislation as outlined by Parliament, has the discretion to extend time applying the principle of substantial justice rather than technicalities as proclaimed in Article 159 of the Constitution. 2. Given the Applicant’s human fallibility, blunders and mistakes are bound to occur and therefore extension of time though not a right can be prayed for and granted by the Court while being guided by the principles in the following authorities: *"The discretion under rule 4 is unfettered, but it has to be exercised judicially, not on whim, sympathy or caprice. I take note that in exercising my discretion l ought to be guided by consideration of the factors stated in previous decisions of this Court including, but not limited to, the period of delay, the reasons for the delay, the degree of prejudice to the respondent and interested parties if the application is granted, and whether the matter raises issues of public importance. In Henry Mukora Mwangi v Charles Gichina Mwangi-Civil Application No. Nai 26 of 2004, this Court held:-3035* *"It has been stated time and again that in an application under rule 4 of the Rules the learned single Judge is called upon to exercise his discretion which discretion is unfettered. It may be appropriate to re-emphasize this principle by referring to the decision in Mwangi v Kenya Airways Ltd. [2003] KLR 486 in which this Court stated:- "Over the years, the Court has, of course set out guidelines on what a single Judge should consider when dealing with an application for extension of time under rule 4 of the Rules. For instance in Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi-Civil Application No Nai. 255 of 1997 (unreported), the Court expressed itself thus:-* *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."* 1. The law of limitation is founded on public policy. It is enshrined in the legal maxim “interest *reipublicae ut sit finis litium*” i.e. it is for the general welfare that a period of limitation be put to litigation. The object is to put an end to every legal remedy and to have a fixed period of life for every litigation as it is futile to keep any litigation or dispute pending indefinitely. Even public policy requires that there should be an end to the litigation otherwise it would be a dichotomy if the litigation is made immortal vis-a-vis the litigating parties i.e. human beings, who are mortals. 2. The appeal by this Applicant has taken quite some time but given the gravity of the offence and the Applicant was not represented by Legal Counsel he must have missed the timeline set out in the Court of 14 days in which he could have preferred his appeal for consideration by the High Court. It is trite law that Courts should not adopt a prejudicial or an injustice-oriented approach in dealing with applications on extension of time for an applicant to file his or her appeal. It is the expectation of the Constitution that there be a purposive interpretation of the law on extension of time so as to advance substantial justice. 3. Generally within our legal system, various Courts have adopted a judiciously liberal approach in interpreting and construing the phrase “sufficient cause” in the proviso of Section 349 of the CPC to condone delay to enable the Courts to do substantial justice in order to apply the law in a meaningful manner so that the ends of justice can be met. 4. This is a man who was tried, found guilty and convicted to suffer death, the shock he may have received may have occasioned even remembering that the Court had decreed that the fourteen (14) days was meant for him to file an appeal to a Superior Court. In this connection, I exercise judicial discretion to enlarge time for him to file an appeal out of time on both conviction and sentence. It will be beneficial to state that the proceedings have already been typed and it is expected that within thirty (30) days from this ruling he could have filed his appeal. **DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.** **.......................................** **R. NYAKUNDI** **JUDGE**