https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9486

Shisia v Republic (Criminal Miscellaneous Application E003 of 2026) [2026] KEHC 9486 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEHC 9486 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Miscellaneous Application E003 of 2026 A Mabeya, J July 3, 2026 Between Kennedy Shisia Applicant and Republic Respondent (Before Hon A. K. Makoross SPM in Tamu Magistrate’s Court Sexual Offences Case Number E007 of 2025) Ruling 1.Kennedy Shisia (“the applicant”) was charged with the offence of defilement contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. This was before Hon A. K. Makoross SPM in Tamu Magistrate’s Court Sexual Offences Case Number E007 of 2025 2.It was alleged that, on the 15/2/2025 at [Particulars Withheld] village in Muhoroni Sub County within Kisumu County, he intentionally and unlawfully caused his penis to penetrate the vagina of BA a child aged 15years old. 3.He denied the charge but after trial, he was found guilty, was convicted and sentenced to serve 20 years imprisonment on 22/10/2025. 4.By a Motion on Notice dated 4/12/2025, he has sought an extension of time to file an appeal against the said decision. 5.The grounds set out in the Motion are that, he is a pauper and that the delay in filing the appeal was caused by family/relatives promises to engage a legal representative for him which did not materialise. That he was he was not aware of the consequences of failing to appeal within the stipulated timelines. 6.Section 349 of the Criminal Procedure Code, provides: -“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 periods of fourteen has elapsed and shall so admit on 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 there from.” 7.From the foregoing, there is jurisdiction to extend time within which to lodge an appeal for sufficient reasons. 8.It is trite law that the decision whether or not to extend the time for appeal is essentially discretionary. See Leo Sila Mutiso vs Helen Wangari Mwangi [1999] 2 EA, In Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet [2018] eKLR, the Supreme Court of Kenya pronounced itself on the question of extension of time thus: -“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favorably exercisable.” 9.In the present case, the applicant has indicated that he did not know the timelines for filing the appeal. That he had expected that his relatives would pick up the matter and get legal representation to lodge an appeal. This Court is aware that the applicant has been in custody where legal services are unavailable. The delay was less than two months. 10.In the view of this Court, the delay was not inordinate. The sentence is substantial and it is better if the applicant is given a chance for his case to be re-looked afresh by a higher court. No prejudice will be suffered by the respondent if the extension sought is granted. 11.Accordingly, the application dated 4/12/2025 is meritorious and is hereby allowed. The applicant is granted 30 days to lodge his petition of appeal.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 3RD DAY OF JULY, 2026.A. MABEYA, FCI ArbJUDGE