https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11725

Elsie alias Wajakoya v Republic (Criminal Miscellaneous Application E025 of 2026) [2026] KEHC 11725 (KLR) (28 July 2026) (Ruling) Neutral citation: [2026] KEHC 11725 (KLR) Republic of Kenya In the High Court at Vihiga Criminal Miscellaneous Application E025 of 2026 RN Nyakundi, J July 28, 2026 Between Michael Wycliffe Elsie alias Wajakoya Applicant and Republic Respondent Ruling 1.Before this Court is Notice of Motion dated 23rd March, 2026, by the Applicant seeking the following orders:a.Spent.b.May this Court be pleased to grant the Applicant leave to appeal out of time.c.May this Court be pleased to extend the time of the Applicant's appeal.d.May this Court be pleased to consider this Applicant as urgent and be heard on priority basis.e.May this Court be pleased to waive any fee/cost involved and see to it that the Applicant will be present at the hearing thereof. 2.Based on the grounds that:a.My constitutional rights will be violated if the relief sought will not be granted.b.It is the Applicant's right to appeal pursuant to article 50(2)(a) and the same is made in same faith.c.The Applicant's appeal has overwhelming chances of success.d.The lack of an advocate and the inability of the Applicant to obtain a copy of judgment or order appealed against.e.The Applicant is a pauper and in prison. 3.In support of the application is the sworn affidavit of Michael Wycliffe Elsie alias Wajakoya, who deponed as follows:a.That, I am a male adult and a Kenyan citizen.b.That , I was arrested, arraigned to Court, charged, convicted and sentenced to LIFE imprisonment for the offence of defilement contrary to section 8(1) ARW 8(2) of the SOA NO. 3 of 2006.c.That , my right to appeal is enshrined in the constitution of Kenya 2010.d.That , the delays was caused by my inability to obtain a copy of judgment or order appealed against.e.That , I will suffer irreparable loss if orders sought will not be granted. 4.It appears the respondent did not fill any rejoinder affidavit to the application of the Appellant. Background 5.The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 and committing of an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 27th August 2023 at Husikhulu Sub Location, Emusenjeli Location, Luanda Sub County within Vihiga County, intentionally and unlawfully caused his penis to penetrate the vagina of H.A. a child aged 6 years, and it was further alleged on the same day, same scene intentionally and unlawfully touched the vagina of H.A. a child aged 6 years with his penis. 6.The Appellant was take through a full trial before the Trial Court in which he was eventually found guilty, convicted of the main charged of defilement and subsequently sentence to life imprisonment. This is the decision he is aggrieved about which he failed to appeal within 14 days as per the law established. Decision 7.The timeline for an appeal to the High Court is 14 days. The key principle for extension of time for one to file an appeal: Discretionary Remedy: Extension of time is not a guaranteed right; it is an equitable favor granted at the Court’s discretion based on the merits of each case. Explanation for Delay: The Applicant must provide a clear, reasonable, and honest reason for why the appeal was not filed within the standard statutory period (such as 14 days under Section 349 of the Criminal Procedure Code). Incarceration Constraints: Courts frequently take judicial notice of the administrative and financial hurdles faced by unrepresented prisoners relying on relatives or prison channels. Prejudice and Merits: The Court weighs whether extending time causes unfair injury to the state or respondent and whether the intended appeal raises serious arguable points. The Leymon Strachan Factors: The Court weighs the length of the delay, the reasons for it, the existence of an arguable appeal, and the degree of prejudice to the respondent. Overriding Objective: Doing justice between the parties remains the primary guiding principle, even if a good reason for the delay is absent. 8.The Supreme Court dealt with this issue of extension of time by laying down the principles to be considered when the Court is vested with an application for extension of time to file an appeal in the case of Salat vs Vs IEBC & 7 Others [2014] eKLR. Thus:a.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;b.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;c.Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;d.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;e.Whether there will be any prejudice suffered by the respondents if the extension is granted;f.Whether the application has been brought without undue delay; andg.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 9.The reasons why the Appellant was not able to file his appeal within 14 days has been set out on his affidavit. In his helpful affidavit he contends that the delay be condoned so that he can concentrate his effort to file an appeal outside the required time of 14 days. In light of the foregoing I have therefore come to the view that this Court exercises discretion for extension of time which had the legal implication to challenge the judgment of the trial Court within the constitutional dictates of the right of appeal. 10.I would accordingly grant the Appellant application by extension of time of filing an appeal within 21 days from today’s date. The status conference be held on 21st of August 2026 before the Deputy Registrar to confirm compliance. Theses 21 day would also involve for the filing of skeleton submission and the record of appeal from the date hereof. 11.Orders accordingly DATED, SIGNED AND DELIVERED THIS 28TH DAY OF JULY 2026.…………………………………….R. NYAKUNDIJUDGE