https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1039

Kamau v Republic (Criminal Application E013 of 2026) [2026] KECA 1039 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 1039 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Application E013 of 2026 LA Achode, JA May 15, 2026 Between Samuel Gachau Kamau Applicant and Republic Respondent (An application for extension of time to appeal from the Judgment of the High Court at Murang’a (Wakiaga J.) delivered on 11th July, 2024 in HC CR. APPEAL NO. E073 OF 2022 Criminal Appeal E073 of 2022 ) Ruling 1.By this criminal application brought pursuant to rule 40 of Court of Appeal Rules, 2022, the applicant, Samuel Gachau Kamau is seeking leave to appeal out of time, against the judgment of Wakiaga J. delivered on 11th July, 2024 at Murang’a High Court. The grounds of the application are stated on the face thereof. 2.The Applicant filed a supporting affidavit sworn by himself together with undated submissions. He deposes that he was tried and convicted for the offence of rape contrary to section 3(1) of the Sexual Offences Act and was sentenced to 20 years imprisonment by the Muranga Senior Resident Magistrate’s Court. 3.Dissatisfied with the judgment, the applicant appealed to the High Court at Muranga in HCC Case No. E073 of 2022. He deposes that upon Wakiaga J. considering and dismissing his appeal in its entirety in a judgment delivered on 11th July, 2024, the applicant was not supplied with a copy of the judgment to enable him appeal in time. He states that he was serving a custodial sentence and did not have an advocate who could appeal on his behalf. He believes that his appeal has high chances of success, and owing to the gravity of the sentence, it is in the interest of justice that this application be allowed. 4.Solomon Naulikha, the learned Senior Assistant Director of Public Prosecution filed submissions dated 16th March, 2026 on behalf of the Respondent. He intimates that the application to appeal out of time is not opposed. 5.I have considered the application and the respondent’s concession herein. However, it is important for the Court to determine whether the Applicant has met the threshold for the Court to grant the extension of time sought. Rule 4 of Court of Appeal Rules 2022, under which the discretion of the Court should have been invoked, allows for the extension of the time limited by the rules, or by any decision of the Court, or of a superior court, on such terms as may be just for the doing of any act authorized, or required by these rules, whether before or after the doing of the act. 6.The Applicant bears the burden to lay the basis for the Court to exercise its unfettered discretion to extend the time for the filing of his appeal. The Court in ODPP v Mbugua & 6 others (Civil Application E110 of 2023) [2023] KECA 858 (KLR), held as follows:“It is now settled that the Court has unfettered discretion to extend time for the filing of a notice of appeal or record of appeal, but that the DPP must lay the basis for the exercise of the Court’s discretion by establishing that the delay in filing the appeal or record of appeal was not inordinate; that there was a good explanation for the delay; and that the application for extension of time has been made without delay” 7.The applicant’s basis for this application is that he was not supplied with a copy of the judgment to enable him appeal in time. Further that he was serving a custodial sentence and he did not have an advocate who could appeal on his behalf. The application is not opposed. 8.In the end I find that the Applicant has met the requirements for an order of extension of time to issue under Rule 4. Consequently, the Application dated 7th May 2024, has merit and is allowed with no orders as to costs.It is so ordered. DATED AND DELIVERED AT NYERI THIS 15TH DAY OF MAY, 2026.L. ACHODE........................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR