Kadika v Republic (Criminal Application E039 of 2026) [2026] KECA 1431 (KLR) (10 July 2026) (Ruling)

Kadika v Republic (Criminal Application E039 of 2026) [2026] KECA 1431 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1431 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Application E039 of 2026 B Ongaya, JA July 10, 2026 Between Lydia Adhiambo Kadika Applicant and Republic Respondent (Being an application for extension of time to file an appeal out of time, against the Judgment of the High Court of Kenya at Siaya (Kemei, J.) dated 6th December, 2024 in HCCRA No. E041 OF 2023) Ruling 1.Before the Court is the applicant’s notice of motion dated 16th April, 2026, brought under Rule 4 of the Court of Appeal Rules, 2022 and Article 50(2)(q) of the Constitution of Kenya. The applicant is seeking orders as follows:a.…(Spent)b.…(Spent)c.That leave be and is hereby granted to the applicant to file an appeal out of time against the judgment of the High Court of Kenya in Siaya HCCRA No. E041 of 2023 delivered on 6th December 2024, that dismissed the applicant’s appeal and upheld the decision of the trial court on both conviction and sentence.d.That the applicant be allowed to file the notice of appeal within 14 days from the date of this order.e.That the Court may issue any further order as it may deem fit.f.That the costs of this application be in the cause. 2.The application is based on the grounds set out on its face and supported by the applicant’s affidavit. The applicant explained that the delay in filing an appeal was not deliberate but due to circumstances beyond her control, specifically her incarceration and her relatives’ inability to secure legal counsel due to financial constraints. She stated that the intended second appeal raises weighty and arguable questions of law, has a high chance of success, and that granting the application is in the interest of fairness and equity. She stated that she would be prejudiced if denied her constitutional right to appeal, while the respondent would not suffer any prejudice that cannot be compensated by costs. 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 20th May, 2026. She cited the case of Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR, in which the Supreme Court distilled the governing criteria for the exercise of the discretion to extend time thus;i.extension of time is not a right but an equitable remedy for a deserving party;ii.the applicant bears the burden of laying a sufficient basis;iii.each case turns on its own facts;iv.the delay must be reasonably explained;v.absence of prejudice to the respondent; andvi.the application must not be brought with undue delay. 5.The applicant stated that financial constraints prevented her from retaining an advocate until after the statutory period for lodging a notice of appeal had lapsed. She urged that the same constituted an excusable mistake or inadvertence, as was found in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR and Kariuki v Wangeci & 7 Others (Civil Application E250 of 2023) [2024]. She also urged that no prejudice would result from granting the extension of time as prayed for. That on the other hand, a denial would violate her right to a fair hearing under Article 50(1) of the Constitution and prevent an arguable appeal. She expressed willingness to accept conditions, such as a fixed timeline for filing the record of appeal. 6.The respondent filed submissions dated 29th June, 2026. It was submitted that the delay of approximately 16 months was inordinate, but that due to the reasons given by the applicant, they do not oppose the application for extension of time to file an appeal. 7.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.” 8.The respondent has not opposed the reasons given by the applicant for the delay in lodging the notice of appeal. The respondent will not suffer prejudice. The respondent has consented that in the circumstances, the delay is excusable. 9.In the premises, 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. ONGAYA...................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR