Nyasundi v Republic (Criminal Application E002 of 2025) [2025] KECA 1788 (KLR) (24 October 2025) (Ruling)
Neutral citation:
[2025] KECA 1788 (KLR)
Republic of Kenya
Criminal Application E002 of 2025
HA Omondi, JA
October 24, 2025
Between
Jacob Otieno Nyasundi
Applicant
and
Republic
Respondent
(Being an application seeking for leave to appeal out of time against conviction and judgment of the High Court of Kenya at Siaya (Aburili, J.) dated 26th July 2017 in HCCRA No. 70 of 2017
Criminal Appeal 70 of 2017
)
Ruling
1.The applicant, Jacob Otieno Nyasundi, was charged of the offence of defilement contrary to section 8(l) as read with 8(3) of the Sexual Offences Act, No. 3 of 2006 for. He was tried, convicted and sentenced to serve 30 years imprisonment by the magistra////te’s court. Aggrieved, he moved to the High Court on appeal vide HCCRA No.70 of 2017 which was dismissed in entirety (Aburuli, J.) on 26th day of July 2017. He however failed to file his appeal within the 14 days after delivery of judgment; but remains desirous of appealing to this Court.
2.In that regard, the applicant filed this application dated 6th January 2025 seeking leave for extension of time to file appeal out of time. The application is premised on the grounds that the applicant was not served with the proceedings and Judgment of the High Court on time, to enable him prepare and file his appeal
3.The respondent, through learned prosecution counsel Ms Munyolo Omusebe-Oduor, acknowledges that the delay is inordinate, but argues that the appeal is arguable with overwhelming chances of success; and that the Respondent will suffer no prejudice. Further; that their legitimate notice of appeal on record lodged and served upon the respondent within a reasonable time, yet, that the applicant intends to challenge the High Court's upholding of a conviction and sentence of 30 years imprisonment; and on this ground alone, it is conceded that the appeal is not frivolous considering that he has been sentenced to a very long period, yet delay in obtaining records was caused by the High Court’s slow process Judgment. This Court is thus urged to exercise its discretion favourably and grant the application for extension of time.
4.I have considered the application, the grounds in support thereof, submissions filed and bearing in mind that in an application of this nature, the court is allowed to exercise its discretion. The issue for determination is whether the applicant is deserving of the orders sought. The Court’s unfettered discretion is provided under rule 4 of the Court of Appeal Rules as follows:
5.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:
6.In Muringa Company Ltd v Archdiocese of Nairobi Registered Trustees, Civil Application No.190 of 2019 observed that:
7.How long was the delay in this instance? 4 years (four). What was the reason? The applicant is a lay person incarcerated; and did not have the advantage of easily reaching the courts to establish the status of his 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 instance, in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, this Court stated:
8.Ultimately, I find that the application is merited and is allowed.The applicant i 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