https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1559
The application was filed about seven years and six months late, and the applicant failed to satisfactorily explain the delay because the alleged notice of appeal was not annexed or otherwise proved. The delay was therefore inordinate and unexplained, so the Court declined to exercise its discretion under rule 4 to...
Source-derived case information.
- Citation
- [2026] KECA 1559 (KLR)
- Parties
- Applicant: Wilson Simiyu Peter; Respondent: Republic
- Court
- Court of Appeal
- Jurisdiction
- Kenya
- Case Number
- Criminal Application E018 of 2026
- Procedural Posture
- Criminal Application for Leave to Appeal Out of Time / Ruling on Application for Extension of Time in the Court of Appeal
- Outcome
- Application dismissed
- Judges
- ["L Ndolo"]
- Legal Topics
- Defilement, Extension of Time, Leave to Appeal Out of Time, Inordinate Delay, Rule 4 Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Simiyu Peter
Applicant
Republic
Respondent
Procedural Posture
Criminal Application for Leave to Appeal Out of Time / Ruling on Application for Extension of Time in the Court of Appeal
Legal Issues
- 1 Whether the Court should extend time to enable the applicant file a second appeal out of time
- 2 Whether the applicant had satisfactorily explained the seven-year-plus delay
- 3 Whether alleged filing of a notice of appeal without an annexed copy could justify extension of time
Ratio Decidendi
The application was filed about seven years and six months late, and the applicant failed to satisfactorily explain the delay because the alleged notice of appeal was not annexed or otherwise proved. The delay was therefore inordinate and unexplained, so the Court declined to exercise its discretion under rule 4 to extend time.
Court Disposition
Application dismissed
Orders
- Leave to appeal out of time declined.
Full Case Text
Judgment text and source record
1 paragraphs
**IN THE COURT OF APPEAL AT ELDORET** **(CORAM: L.M. NDOLO, JA (IN CHAMBERS) CRIMINAL APPLICATION NO E018 OF 2026 BETWEEN** **WILSON SIMIYU PETER APPLICANT** **AND** **REPUBLIC RESPONDENT** *(Application for leave to appeal out of time against the Judgement of the High Court of Kenya at Kitale (H. Chemitei, J.) delivered on 1st September 2018* ***in*** ***HCCRA No 127 of 2015)*** ***\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\**** **RULING** 1. The applicant was convicted of the offence of defilement contrary to ***section 8(1)*** as read with ***section 8(2)*** of the Sexual Offences Act, in Kitale Criminal Case Number 3065 of 2013. His appeal against conviction and sentence was dismissed by the High Court at Kitale, on 1st September 2018. 2. The applicant missed the timelines for filing a second appeal before the Court of Appeal, hence his application dated 28th April 2026, by which he seeks extension of time to file an appeal out of time. 3. In urging his application, the applicant states that he filed a notice of appeal at the High Court, but he did not receive directions as to how to progress his appeal. In his submissions dated 28th April 2026, the applicant agrees that extension of time under ***rule 4*** of this Court’s Rules is a discretionary remedy to be granted to a deserving party in the interest of justice. 4. The respondent is opposed to the application. In its submissions dated 29th June 2026, it states that although the Court has unfettered discretion to extend time under ***rule 4*** of the Court of Appeal Rules, the applicant has a duty to provide sufficient grounds to warrant exercise of discretion in their favour. The respondent avers that the delay in this case, being over seven (7) years, is inordinate and inexcusable. The respondent stresses that the applicant has not adduced any evidence to support his averment that he had lodged a notice of appeal at the High Court. 5. Relying on this Court’s decisions in ***Josephat Ingonga vs Republic [2025] KECA 355 (KLR)*** and ***Mukunza vs Republic [2026] KECA 293 (KLR)*** the respondent urges that an applicant moving the Court under ***rule 4*** bears the duty to satisfactorily explain the delay. 6. The applicant’s application has been brought 7 years and 6 months late. Although the applicant has attributed the delay in filing the appeal to lack of directions on a notice of appeal he claims to have lodged at the High Court, no such notice has been annexed to his application. 7. Having considered the application and submissions tendered by the parties as well as the applicable principles for extension of time, I find that the delay, which is evidently inordinate, has not been satisfactorily explained. 8. The applicant’s plea for extension of time is therefore declined. **Dated and delivered at Eldoret this 31st day of July, 2026.** **L.M. NDOLO** **…………………….…………… JUDGE OF APPEAL** *I certify that this is a true copy of the original.* *Signed* ***DEPUTY REGISTRAR***