https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1173

Rogisho v Republic (Criminal Application E022 of 2026) [2026] KECA 1173 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KECA 1173 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Application E022 of 2026 BM Kairaria, JA June 19, 2026 Between Peter Kamau Rogisho Applicant and Republic Respondent (An application for extension of time from the judgment of the High Court of Kenya at Nyandarua (C. Kariuki, J.) delivered in November 2023 in HCCR.A No. E082 OF 2023) Ruling 1.The application dated 23rd March 2026 by Peter Kamau Rogisho the applicant principally seeks extension of time to appeal the Court of Appeal against the decision of the High Court at Nyandarua [C. Kariuki, J.] in Nyandarua HCCRA No. E082 of 2023 by which the learned judge of the superior court dismissed the applicant’s appeal against conviction and sentence for the offence of defilement contrary to Section8[1] as read with Section 8[2] of the Sexual Offences Act No. 3 of 2006 in Sexual Offence Case No E069 of 2022. 2.It is not quite clear from the material filed before the Court whether the applicant was charged, tried, convicted and sentenced at the Chief Magistrate’s Court at Kilgoris which the applicant cites in the heading of his application or the Magistrate’s Court at Engineer Law Courts which he cites at paragraph 2 in his affidavit in support of the application. The exact date on which the decision in respect of which extension of time to appeal is sought is not disclosed and the copy of the impugned judgment has not been availed to the Court. 3.The application is premised on the grounds that; the applicant was convicted of the offence of defilement and sentenced to serve twenty[20] years imprisonment by the magistrate’s court; dissatisfied with that decision he lodged a criminal appeal namely HCCRA No. 082 of 2023 at the High Court in Nyandarua; that appeal was dismissed by Kariuki J on an undisclosed date in the month of November 2023; aggrieved by the dismissal of his appeal he filed a constitutional petition [HCCHRPET/E004/2025] which was dismissed by Kiarie J on 23rd February,2026; he did not appeal on time because he was pursuing the constitutional petition; now that the petition has been dismissed he wishes to pursue his earlier intention to appeal against conviction and sentence hence his application seeking extension of time. 4.In support of the application the applicant filed an undated supporting affidavit and written submissions dated 13th May 2026. The applicant avers that his appeal has high chances of succeeding and submits that the Court has unfettered discretionary powers to extend time under Rule 4 of the Court of Appeal Rules whenever the circumstances of justice dictate. He cited the decision of this Court in Leo Sila Mutiso Vs Rose Hellen Wangari Mwangi [1999] 2 EA 231 where the Court stated the factors to be taken into account when considering an application for extension time include the length of delay, the reason for the delay, the chances of the intended appeal succeeding and the degree of prejudice to the respondent. 5.On the issue of length of delay, the applicant submits that he has taken only two years to file the application for leave to appeal which he reckons is not so long as to prevent this Court from exercising its discretionary powers to grant him an opportunity to file his appeal out of time. He further submits that he has sufficiently explained the delay because he was pursuing legal remedies before a competent court and the delay was neither deliberate nor intended to obstruct justice. 6.Regarding the chances of the intended appeal succeeding, the applicant contends that because he intends to challenge the findings and conclusions reached by the High Court both on matters of law and evaluation of evidence, his intended appeal is not frivolous and raises serious constitutional and procedural issues requiring determination by this Court. The applicant invokes Article 50[1] of the Constitution and submits that denying him an opportunity to ventilate his appeal would amount to shutting him out from the seat of justice contrary to the right to a fair hearing. 7.Finally the applicant submits that the respondent shall not suffer any prejudice and prays that the Court be pleased to:a.Allow the Notice of Motion dated 23rd March 2026;b.extend time for filing and serving the intended appeal;c.grant leave to file the intended appeal out of time; andd.Make such further orders as the Court may deem just. 8.I have considered the grounds of the application, the affidavit in support thereof as well as the applicant’s written submissions and the cited case law. The sole question for determination is whether or not I should exercise my discretion to extend time in favor of the applicant to enable him to file his intended appeal out of time. The principles governing the exercise of this Court’s jurisdiction when considering an application for extension of time under Rule 4 are well settled. To succeed the applicant must give a plausible and satisfactory explanation for the delay. 9.In the instant case the applicant has indicated that the judgement sought to be appealed was delivered on an undisclosed date in November 2023. His explanation for the delay is that he was pursuing other legal means of challenging the decision of the High Court upholding his conviction and sentence through a petition which was dismissed on 23rd February 2026. That petition appears to have been filed in the year 2025. The applicant has not accounted for the delay between November 2023 and the year 2025 when he filed the petition. He has also not explained why he chose to file a petition to challenge his conviction and sentence instead of appealing directly to this Court. 10.In the absence of a plausible and satisfactory explanation for the delay, I am unable to exercise my discretion to extend time in favor of the applicant. Accordingly, I find no merits in the application dated 23rd March 2026 and dismiss it. DATED AND DELIVERED AT NAKURU THIS 19TH DAY OF JUNE, 2026.MURUNGI B. KAIRARIA……………………………..JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR