https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1437

Wasonga v Republic (Criminal Application E027 of 2026) [2026] KECA 1437 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1437 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Application E027 of 2026 EC Mwita, JA July 10, 2026 Between Michael Otieno Wasonga Applicant and Republic Respondent (Being an application for leave to appeal out of time against the judgment of the High Court of Kenya at Siaya (Aburili, J) dated 4th May 2020 in HCCRC No 4 of 2019 Criminal Case 4 of 2019 ) Ruling 1.Michael Otieno Wasonga, the applicant, was charged with murder before the High Court of Kenya at Siaya; he was tried, convicted and sentenced to life imprisonment on 4th May 2020. He has now brought this application seeking extension of time within which to lodge an appeal out of time against his conviction and sentence. 2.The application is premised on the grounds that, after the delivery of the judgment and sentence, the appellant desired to appeal but he was unable to file the notice of appeal within the prescribed time because of failure to get copies of typed proceeding and a copy of the judgment which were circumstances beyond his control 3.Ms. Mumu, counsel for the respondent has filed written submissions dated 29th June 2026 opposing the application, contending that the delay of six years is inordinate and has not been explained; that the applicant has not shown that the intended appeal has high chances of success and that granting leave to appeal after six years will be prejudicial to the respondent. 4.I have considered the application, the grounds in support thereof and the response to the application. Rule 4 of the Court of Appeal Rules gives this Court discretion to extend the time limited for the doing of any act authorized or required by the Rules. In Leo Sila Mutiso v Helen Wangari Mwangi [1999] 2 EA 231, this Court rendered itself 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; third, (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.” 5.After convicting the applicant, the high Court sentenced him to life imprisonment on 4th May 2020. The applicant states that he was not able to lodge his appeal due to unavoidable circumstances, including not getting copies of the proceedings and the judgment in time. As a lay person, the applicant may have genuinely thought that he required proceedings and a copy of the judgment before lodging the notice of appeal. 6.The period of delay of six years is indeed inordinate, but the reason advanced regarding failure to be supplied with copies of proceeding and judgment is not an idle one. The applicant is incarcerated and is representing himself. This Court appreciates that, as a lay person, the applicant may not have known what was required in order to file an appeal. The applicant has an undoubted of right of appeal against the conviction and sentence and despite the delay, I am persuaded that he has explained the reasons for the delay. 7.Regarding chances of success of the intended appeal, the applicant states that some of the issues he intends to raise in the intended appeal are whether the High Court properly evaluated the evidence and whether the sentence imposed is excessive and lawful in the circumstance. These are issues this Court cannot delve into sitting as a Single Judge. The respondent’s argument that the late filing of the appeal will be prejudicial is not persuasive. On the other hand, declining the application will have the singular effect of permanently locking out the applicant from the seat of justice. 8.Having considered the application, the reasons advanced for the delay in filing the appeal on time, the response thereto, and considering that the applicant is representing himself and is under incarceration, I am satisfied that the reasons advanced for the delay in filing the notice of appeal on time have been reasonably explained. 9.Consequently, I allow the application. The time for filing appeal is hereby enlarged. The applicant is granted leave to filed a notice of appeal within 14 days. The notice of appeal shall thereafter be served within seven days of its filing. The memorandum of appeal and the record thereof shall thereafter be filed within 30 days from the date of filing the notice of appeal DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.E C MWITA.....................JUDGE OF APPEALI certify that this is a true copy of original.DEPUTY REGISTRAR.