https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1390

Githui v Republic (Criminal Application E026 of 2026) [2026] KECA 1390 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1390 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Application E026 of 2026 LA Achode, JA July 3, 2026 Between Samson Kariuki Githui Applicant and Republic Respondent (Being an application for leave to file an appeal out of time against the Judgment of the High Court of Kenya at Kerugoya (Muriithu J) dated 20th February, 2026 in HCCR. Appeal No. E045 of 2023) Ruling 1.By a notice of motion dated 11th May 2026, the applicant seeks for leave to file and serve a notice of appeal and petition of appeal out of time. The application is premised on the grounds on the face thereof and the supporting affidavit of the applicant sworn on 2nd March, 2026. 2.The applicant wishes to appeal against the decision of Muriithi J, dated 20th February, 2026, delivered in the High Court of Kenya at Kerugoya, in Kerugoya HCCR Appeal No. E045 of 2023. The learned Judge upheld the conviction of the applicant for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, and a sentence of life imprisonment. 3.The applicant deposes that the delay in filing the appeal was occasioned by: lack of access to an independent legal representation, forcing him to rely entirely on prison paralegals and available third parties to comprehend legal language, draft documents, and trace court process; that while in custody, he was subjected to institutional transfers between prison facilities, disrupting his normal routine, and isolating him from the contacts and legal materials he was compiling. 4.He further deposes that he took the reasonable steps to initiate his appeal by submitting paperwork directly though the Prison authorities to the High Court Registry, however, despite doing so, he did not receive any feedback, reference number or tracking information from the Court Registry. Hence, the delay in filing his appeal is not deliberate, contumacious, or an afterthought, but rather an unfortunate side effect of his status as an isolated inmate navigating bureaucratic hurdles from behind prison bars. He deposes that he has an arguable and meritorious intended appeal with high chances of success. 5.On appeal, the applicant intends to urge that the learned appellate Judge erred in law by: failing in his statutory duty to conduct an exhaustive re-evaluation of the evidence, specifically by failing to resolve major contradictions between the testimony of the minor (PW2) and the mother (PW1), and that the trial court erred in relying on expert medical evidence produced by a clinical officer (PW3) who explicitly admitted on cross-examination that he did not examine the victim himself. 6.Mr. Solomon Naulikha, learned Senior Assistant Director of Public Prosecution filed submissions dated 4th June, 2026, and intimated that there was no opposition to this application. 7.I have considered the application and the supporting and replying affidavits. The application seeks a grant of an order for extension of time to file the notice of appeal. The mandate to determine the application for extension of time is provided by rule 55(1) of this Court’s Rules. Section 349 of the Criminal Procedure Code provides that:“An appeal shall be entered within fourteen days of the date of the order or sentence appealed against:“Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has elapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor.” 8.The proviso to the foregoing section allows this court to consider an application seeking the filing of an appeal out of time, if the applicant demonstrates that the inability to file the appeal was caused by late supply of a copy of the judgment, or order appealed against. The yardstick is; ‘for good cause’. In ascertaining good cause, the court should be satisfied that failure to enter appeal in time was caused by inability to obtain judgment or order or record thereof within the prescribed time, that is, fourteen days.(See- HCCR Application No 5 of 2020 Alex Salaiyo Abraham v Republic (unreported). 9.I have subjected the application to the principles to be considered by the court, in exercising the discretion to extend time for filing an appeal, as set out in Salat v Independent Electoral & Boundaries Commission & 7 Others [2014] KLR SCK, and find that the applicant has laid sufficient basis for the application to be granted. 10.The applicant has attached a notice of the intended appeal upon which the court surmises that the intended appeal is arguable. The applicant indicates that he had difficulties in obtaining the record for appeal purposes. That the delay was occasioned by lack of access to independent legal representation while in prison and by transfers between prison facilities, disrupting his compilation of legal material. 11.For the reasons stated above, I find that there is justification to grant the prayers sought in the application for leave to file the appeal out of time. The application is therefore allowed. The appeal shall be filed within 30 days of the date of ruling. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.L. ACHODE............................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR