https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1307

Musyoka v Republic (Criminal Application E023 of 2026) [2026] KECA 1307 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KECA 1307 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Application E023 of 2026 A Ali-Aroni, JA July 7, 2026 Between Tirus Ndambuki Musyoka Applicant and Republic Respondent (Being an application for leave to file and serve an appeal out of time against the Judgment of the High Court at Nairobi (Musyoki, J.) delivered on 5th June, 2025 in ACECA No. E006 of 2024) Ruling 1.Before the Court is an application by way of a notice of motion dated 26th April 2026 brought under rules 4, 77, 82, 84, 86 and 90 of the Court of Appeal Rules, 2022 (‘the Rules’); sections 3A and 3B of the Appellate Jurisdiction Act; Articles 48, 50(1), 159(2)(d) and 259 of the Constitution, seeking leave to file and serve an appeal out of time and the annexed memorandum of appeal be deemed as duly filed upon payment of the requisite fees. 2.The application is predicated on the grounds on the face of the application and the applicant’s affidavit dated 2nd April,2028, stating that the applicant was desirous of appealing against the whole of the impugned judgment delivered on 5th June 2025, and instructed his then counsel on record to lodge and prosecute an appeal within the prescribed timelines; that he was at all material times, a chief of Lukenya Location thus a public officer within the meaning of the Anti-Corruption and Economic Crimes Act; there were allegations that he allegedly received a financial benefit from a complainant in circumstances alleged to constitute bribery and abuse of office; leading to his arrest and subsequent arraignment before the subordinate court in Milimani ACEC E018 of 2021 wherein he was charged with the offences of receiving a bribe contrary to section 6(1)(a) as read with section 18(1) of the Anti-Bribery Act, Cap 79B, and abuse of office contrary to section 46 as read with section 48(1) of the Anti-Corruption and Economic Crimes Act. 3.He further depones that he was convicted and subsequently sentenced by the trial court on the 15th August 2024, and being aggrieved by the said conviction and sentence, he preferred an appeal to the High Court, Milimani High Court ACECA E006 of 2024; which was, however, partially dismissed vide a judgment delivered on the 5th June 2025; being dissatisfied with the said judgment, the applicant forthwith instructed his then counsel on record to institute and prosecute a further appeal to this Court against the entirety and/or substantial parts of the said decision; in demonstration of his keen interest in the expeditious prosecution of the intended appeal, he regularly made follow-ups with his said counsel, who consistently assured him that all requisite procedural steps had been duly undertaken and that the appeal process was actively underway; recently, owing to an inordinate period of silence, lack of progress, and growing apprehension as to why the appeal had not been allocated a number, the applicant personally attended the court registry to make independent inquiries regarding the status of his intended appeal and he discovered that although a notice of appeal had indeed been lodged, no formal request for certified proceedings and judgment had ever been made, nor had any record of appeal been prepared, filed, or instituted on his behalf; the failure to lodge and prosecute the appeal within the prescribed timelines was wholly occasioned by the negligence of the applicant’s counsel, and not due to any indolence, or lack of diligence on his part. 4.He states further, that he has taken immediate and proactive steps to pursue the appeal; he believes that he has an arguable appeal with high prospects of success and unless this Court grants the orders sought, he stands to suffer prejudice, in that he shall be unjustly denied the constitutional and statutory right to ventilate his appeal on its merits; the subsistence of the impugned conviction will occasion a permanent and indelible criminal record against him, thereby severely impairing his standing in society and foreclosing future opportunities for gainful employment, consultancy, or engagement in both public and private sector; at the material time he served in a position of considerable public trust, honour, and responsibility, and that the conviction and sentence, if left unchallenged, will irreparably tarnish his personal and professional reputation; the impugned conviction has occasioned a dishonorable exit from public service, and will further occasion the forfeiture and/or diminution of the applicant’s accrued retirement benefits and entitlements; matters which, taken cumulatively, constitute compelling circumstances warranting the intervention of this Court to preserve his right of appeal and vindicate his long-standing record of service; the application has been brought without undue delay immediately upon the discovery of the said omission and default. 5.The respondent did not file any replying affidavit or submissions. In a letter addressed to the Registrar of the Court, it was indicated that the respondent will not be opposing the application. 6.Learned counsel for the applicant filed submissions and a case digest both dated 5th July 2026 and relies on Leo Sila Mutiso vs Rose Hellen Wangari Mwangi [1999] 2 EA 231, to submit that the decision whether or not to extend time is discretionary. Counsel also relies on Fakir Mohammed vs Joseph Mugambi & 2 Others [2006] KECA 240 (KLR) in submitting that the discretion under rule 4 of the Rules is unfettered and there is no limit to the number of factors the Court may consider, provided they are relevant. He submits further that although the intended appeal was not filed within the timelines contemplated under the Rules, the delay has been fully, specifically and plausibly explained. 7.Relying on Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet [2018] KECA 701 (KLR), where the Court held that there is no minimum or maximum period of delay, and that the decisive issue is whether the delay has been satisfactorily explained, counsel submits that the applicant’s case is one of counsel’s default, not the applicant’s indolence and urges that the law has long recognized that while a litigant is generally bound by the acts and omissions of counsel, courts retain discretion to relieve an innocent litigant from the consequences of counsel’s mistake where the interests of justice so demands. 8.Counsel further cites Philip Keipto Chemwolo & Another vs Augustine Kubende [1986] KECA 87 (KLR), where the court held that blunders will continue to be made from time to time, and that it does not follow that because a mistake has been made, a party should suffer the penalty of not having his case heard on its merit. 9.On merit of the intended appeal, counsel submits that the draft memorandum of appeal annexed to the supporting affidavit raises serious questions of law. The intended appeal, therefore, lies within the proper province of a second appeal and is not an invitation to re-litigate facts. It is an invitation to interrogate the legality, safety and soundness of the conviction and the sentence meted out. 10.I have considered the application, the grounds in support thereof, the supporting affidavit, the applicant’s submissions and the respondent’s position that it does not oppose the application. The principles governing the exercise of this Court’s discretion under Rule 4 of the Rules are now well settled. The Court exercises unfettered discretion, which must, however, be exercised judicially and upon consideration of, among other factors, the length of the delay, the reasons for the delay, the likelihood of the intended appeal succeeding, and the degree of prejudice to the respondent if the application is granted. See Leo Sila Mutiso vs Rose Hellen Wangari Mwangi [1999] (supra). 11.The judgment sought to be appealed against was delivered on 5th June 2025. The present application was not filed until 26th April 2026, more than 10 months after the date of the impugned judgment. Though the delay of 10 (ten) months is long, I find that it has been satisfactorily explained. 12.Further, the Court is alive to the principle that a litigant should not ordinarily be punished for the mistake of counsel, that the applicant herein has demonstrated due diligence by following up on his case, discovering that counsel did not take relevant steps and instructing a new counsel to take up the matter. It has also been demonstrated that the intended appeal is not frivolous. 13.Since the application remains unopposed, I grant the notice of motion dated 26th April 2026. The memorandum of appeal and record of appeal be filed within the next 30 days. DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF JULY, 2026.ALI-ARONI............................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR