Madowo v Republic (Criminal Application E005 of 2025) [2025] KECA 1775 (KLR) (24 October 2025) (Ruling)
Neutral citation:
[2025] KECA 1775 (KLR)
Republic of Kenya
Criminal Application E005 of 2025
HA Omondi, JA
October 24, 2025
Between
Erastus Omwonya Madowo
Applicant
and
Republic
Respondent
(Being an application seeking to appeal against both conviction and sentence in the High Court of Kenya at Siaya (Aburili, J.) in HCCRA No. 85 of 2017
Criminal Appeal 85 of 2017
)
Ruling
1.Erastus Omwonya Madowo was tried, convicted and sentenced to serve 80 years imprisonment, for the offence of Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No.3 of 2006 vide criminal case file no. 991 of 2016 at Siaya Law Court. He appealed against the decision vide HCCRA No. 85 of 2017// at Siaya High Court, but the appeal was dismissed at its entirety. He was aggrieved by that outcome and desired to file an appeal, but was not able to do so, for want of record of appeal comprising the proceedings and judgment.
2.Consequently, by an application dated 14th January 2025, he now seeks orders to allow him to file appeal filed out of time; annexed in the supporting, contending that he could not have done so earlier as he was not supplied with the High Court file to enable him me to file an appeal on time. He states that his appeal has high chances of succeeding; and the respondent will suffer no prejudice should he be granted the prayers.
3.In conceding the appeal, the respondent through learned prosecution Counsel, Ms.Munyolo Omusebe-Owuor points out that while there is no legitimate notice of appeal on record lodged and served upon the respondent within a reasonable time, it is significant that the applicant intends to challenge the High Court's upholding of a conviction and sentence of 80 years imprisonment, which cannot be considered as not frivolous. Further, that for an individual who is serving 80 years imprisonment, consideration must be given to the fact that delay in obtaining from the High Court Judgment was not due to any condition within the applicant’s control. This Court is thus urged to exercise its discretion favourably in the matter and grant the application for extension of time.
4.This Court is allowed to exercise its unfettered discretion as provided under rule 4 of the Court of Appeal Rules that:Rule 4 of the Court of Appeal Rules does not provide for factors the court ought to consider in an application for extension of time but courts have devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. The case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 which is the locus classicus, laid down the parameters as follows:
5.In Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees, Civil Application No.190 of 2019 observed that:
6.The delay in this instance was eight (8) years. What was the reason? The applicant being a lay person is incarcerated; and did not have the advantage of easily reaching the courts to monitor the status of his records of appeal. There is no maximum or minimum period of delay set out under the law, however, the reason or reasons for the delay must be reasonable and plausible. For this proposition see Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR,
7.I recognize that the notice of appeal ought to have been lodged within 14 days of the delivery of the decision which it seeks to appeal; that did not happen; nor has the applicant filed and served his record of appeal. I am however satisfied that the reasons already alluded to posed a challenge to the applicant to act in a timely manner; and indeed, the sentence the applicant is challenging is a long one which if his prayer is denied will occasion him great prejudice.
8.The upshot is that the application is merited and is allowed.The applicant is granted extension of time to file and serve the notice of appeal out of time within fourteen (14) days of today’s date. The applicant shall file and serve the respondent with the record of appeal within thirty (30) days upon service of the Notice of Appeal.
DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF OCTOBER, 2025.H. A. OMONDI .......................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR