https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1410

Nyambane v Republic (Criminal Application E032 of 2026) [2026] KECA 1410 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1410 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Application E032 of 2026 EC Mwita, JA July 10, 2026 Between Wesley Omwenga Nyambane Applicant and Republic Respondent (Being an application for leave to appeal out of time against the judgment of the High Court of Kenya at Nyamira in HCCRA No E017 of 2023) Ruling 1.Wesley Omwenga Nyambane, the applicant, was charged with defilement before the Principal Magistrates court at Keroka; tried, convicted and sentenced to life imprisonment. His appeal to the High Court of Kenya at Nyamira appeal succeeded against sentence only with the result that the life sentence was substituted with a sentence of 30 years imprisonment. He has now brought an application dated 9th April 2026, seeking extension of time within which to file an appeal out of time against the judgment of the High Court delivered on a date the applicant has not disclosed. 2.The application is premised on the grounds that after the delivery of the judgment, the appellant desired to appeal and prepared a notice of appeal with the help of Prison officers which was filed at the High Court in Nyamira but that Notice of Appeal was not transmitted to this Court. The applicant was later advised to file the notice of appeal electronically through CTS but Prison officers could not find a direct link for filing a notice of appeal. The applicant who is representing himself was not able to follow up on the notice of appeal thus, the reason for the delay in filing his appeal. He now urges this Court to extend time for him to file the appeal. 3.The respondent has filed written submissions dated 15th June 2026, acknowledging this Court’s discretionary power to enlarge time and does not oppose the application. 4.Rule 4 of the Court of Appeal Rules gives this Court discretion to extend the time limited for the doing of any act authorized or required by the Rules. In Leo Sila Mutiso v Helen Wangari Mwangi [1999] 2 EA 231, this Court rendered itself as follows:“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this court takes into account in deciding whether to grant an extension of time are: first, the length of the delay; secondly, the reason for the delay; third, (possibly) the chances of the appeal succeeding if the application is granted: and, fourthly, the degree of prejudice to the respondent if the application is granted.” 5.The Judgment which the applicant seeks to appeal against, was delivered on a date both the applicant and the respondent do not disclose but both acknowledge that it was delivered by the High Court of Kenya at Nyamira, while this application was filed on 9th April 2026, making it difficult for this Court determine whether or not the delay is inordinate. 6.That notwithstanding, the applicant who is representing himself, is incarcerated; he has stated that he filed a notice of appeal at Nyamira High Court but the High Court Registry did not transmit the notice of appeal to this Court. The applicant further states that he did not know the procedure for filing a notice of appeal electronically and Prison officers could not be of help in that regard. 7.Having considered the application and the reasons advanced for failing to file the appeal in time, considering that the application is not opposed and the applicant’s desire to appeal to this Court, I am satisfied that the reasons advanced for the delay in filing the notice of appeal on time have been reasonably explained. 8.Given the above circumstances, I hereby allow the application dated 9th April, 2026. The time for filing appeal is hereby enlarged. The applicant is granted leave to filed a notice of appeal within 14 days. The notice of appeal shall thereafter be served within seven days of its filing. The memorandum of appeal and the record of appeal shall thereafter be filed within 30 days from the date of filing the notice of appeal DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.E C MWITA………………………JUDGE OF APPEALI certify that this is a true copy of original.DEPUTY REGISTRAR