https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1207

Koech v Republic (Criminal Application E027 of 2026) [2026] KECA 1207 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KECA 1207 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Application E027 of 2026 WK Korir, JA June 26, 2026 FORMERLY NO. E003 OF 2025 Between Nicholas Koech Applicant and Republic Respondent (Being an application for extension of time to appeal against the conviction and sentence of the judgment of the High Court of Kenya at Eldoret (Nyakundi, J.) dated 19th December 2018 in HCCRA No. 138 of 2015) Ruling 1.Through the notice of motion dated 5th September 2025, Nicholas Koech, seeks extension of time to appeal against the judgment delivered by the High Court at Eldoret on 19th December 2018 in Criminal Appeal No. 138 of 2015. His reason for failing to appeal within the prescribed time is that he did not receive his judgment on time. 2.In submissions dated 29th April 2026, Mr. Okaka, learned Principal Prosecution Counsel, while conceding to the application, submits that the applicant’s averment that he did not receive his judgment timeously is plausible. 3.Extension of time to file an appeal is an equitable exercise of discretion and not an automatic right. Among the factors to be considered in assessing whether to allow an application for extension of time are the length of the delay, the reason for the delay and the conduct of the parties. The Supreme Court in Salat vs. Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) condensed the guidelines for extension of time as follows:“This being the first case in which this Court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a Court should consider in exercise of such discretion:1.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;2.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;3.Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4.Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;5.Whether there will be any prejudice suffered by the respondents if the extension is granted;6.Whether the application has been brought without undue delay; and7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 4.The application before me has been filed over eight years after the delivery of the judgment intended to be appealed. The explanation for the delay is that the applicant did not receive the judgment in good time. Much as it is appreciated that the applicant is in prison and may not have access to facilities enjoyed by a party who is not incarcerated, I find the explanation casual and unsatisfactory. There is no averment that a notice of appeal was filed, and if so, when it was filed. A notice of appeal can be filed without a judgment having been received from the court whose decision is intended to be appealed. No deposition was made as to whether there was a request for proceedings, and if there was such a request, whether there was followed up. In fact, it is not stated when the judgment that was allegedly received late was supplied. 5.Much as the Court may want to be magnanimous to the applicant, such a state of affairs cannot trigger the exercise of the Court’s discretion in his favour. Extension of time to appeal cannot be exercised on a whim or sympathy. An applicant must lay a proper basis for enlargement of time and should not expect the Court to act injudiciously by granting leave where it is not deserved. As such, the application for extension of time is found to be without merit, declined and dismissed. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF JUNE 2026.W. KORIR..................................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDeputy Registrar