1. Before this Court is the Applicant's Notice of Motion Application dated 27 th November 2024 seeking leave to lodge an appeal out of time against the judgment of the trial court delivered on 8th October 2024.
2. The application is premised on the grounds set out on its face and the supporting affidavit sworn by Nathaniel Muturi on even date. The Applicant contends that he was the complainant in the trial court case number 2544/2020 Republic vs. Paul Ndegwa Thiga and he lodged his complaint against the Respondent about forgery of his signature on the sale agreement which led to the charge against the Respondent.
3. He further contends that he expected the judgement to go in his favour and when it did not, he preferred an appeal. He states that proceedings were not ready and hence could not file the Appeal on time. It is on this ground that the Application is premised.
4. Although the impugned judgment was delivered on 8th October 2024, the appeal was not lodged within the statutory period prescribed by law. The Applicant therefore seeks the indulgence of the Court to extend time and deem the appeal filed on 27th November 2024 as duly filed.
5. The application is opposed vide a Replying Affidavit sworn on 1 st August 2025 by the Respondent. The Respondent contends that the delay has not been satisfactorily explained and that the Applicant had sufficient time within which to file the appeal. The Respondent contends that proceedings were ready by 8 th October 2024 and a certified copy of the judgement was ready on 9 th October 2024. The Respondent did not however attach any proof that indeed the proceedings were ready by 8 th October 2024.
6. The Application was canvassed by way of submissions and both parties filed written submissions in support of their positions. I have considered the application, the affidavits on record and the submissions of counsel.
Issue for determination
7. The issue for determination is;
whether the Applicant has established sufficient cause to warrant the exercise of this Court's discretion in extending time for the filing of the appeal .
8. The power of the High Court to admit an appeal out of time is donated by Section 349 of the Criminal Procedure Code which provides:
"An appeal shall be entered within fourteen days of the date of the order or sentence appealed against:
Provided that the court to which the appeal is made may, for good cause, admit an appeal after the period of fourteen days has elapsed."
7. The provision grants the Court a wide discretionary power to extend time where good cause is demonstrated. The discretion must, however, be exercised judiciously and upon consideration of all the circumstances of the case.
8. In considering whether to extend time, courts have generally taken into account factors such as the length of delay, the reason for the delay, the degree of prejudice likely to be suffered by the Respondent, the public interest involved and whether the intended appeal raises arguable issues. These principles were succinctly set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2013] KECA 113 (KLR) where the Court emphasized that extension of time is an equitable remedy to be granted on a case-by-case basis. Although that decision arose in a civil context, the principles enunciated therein have been applied consistently in determining applications for enlargement of time.
9. In the present case, judgment was delivered on 8th October 2024. The statutory period for lodging the appeal expired on or about 22nd October 2024. The appeal was eventually filed on 27th November 2024. The delay is therefore slightly over one month beyond the prescribed period.
10. From the record, it is not clear when the Applicant had the benefit of certified proceedings as the proceedings attached to the Petition of Appeal were certified on 25 th March 2025 however the judgment is dated 9th October 2024.
11. The Court takes judicial notice of the institutional processes involved in public prosecutions, particularly where a decision to appeal must undergo administrative and legal review before authorization is granted. While such processes do not automatically excuse delay, they are relevant considerations when assessing whether the delay is excessive or prejudicial.
12. More importantly, no material has been placed before the Court demonstrating that the Respondent will suffer substantial prejudice if leave is granted. The Respondent's principal complaint is the delay itself.
13. The Court is also mindful that criminal proceedings engage significant public interests. Where the Director of Public Prosecutions seeks to challenge a decision believed to be erroneous, the interests of justice generally favour determination of the dispute on its merits unless the delay is so prolonged or prejudicial as to render such determination unjust.
14. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 , the Court emphasized that the length of delay, the explanation for the delay, the chances of success of the intended appeal and the degree of prejudice to the respondent are relevant considerations in applications seeking enlargement of time. Applying those principles to the present matter, I am satisfied that the delay herein is not inordinate and that the interests of justice would be better served by allowing the intended appeal to be heard on its merits.
15. The right of appeal is an important component of the administration of justice and, where circumstances permit, courts should lean in favour of substantive determination rather than shutting out a litigant from the seat of justice on account of a relatively short delay.
16. I am not persuaded that the delay in the circumstances of this case can be described as inordinate. The period involved is relatively short and does not disclose indolence or a deliberate disregard of the law.
Final orders
17. Having considered all the circumstances of the case, I am satisfied that sufficient cause has been shown to warrant the exercise of this Court's discretion under Section 349 of the Criminal Procedure Code.
18. Consequently, the Notice of Motion is merited.
19. Accordingly, leave is hereby granted to the Applicant to file and prosecute the appeal out of time.
20. The Petition of Appeal dated 27th November 2024 is hereby deemed as duly filed and served.
Ruling delivered virtually on 29 th May 2025
2. The application is premised on the grounds set out on its face and the supporting affidavit sworn by Nathaniel Muturi on even date. The Applicant contends that he was the complainant in the trial court case number 2544/2020 Republic vs. Paul Ndegwa Thiga and he lodged his complaint against the Respondent about forgery of his signature on the sale agreement which led to the charge against the Respondent.
3. He further contends that he expected the judgement to go in his favour and when it did not, he preferred an appeal. He states that proceedings were not ready and hence could not file the Appeal on time. It is on this ground that the Application is premised.
4. Although the impugned judgment was delivered on 8th October 2024, the appeal was not lodged within the statutory period prescribed by law. The Applicant therefore seeks the indulgence of the Court to extend time and deem the appeal filed on 27th November 2024 as duly filed.
5. The application is opposed vide a Replying Affidavit sworn on 1 st August 2025 by the Respondent. The Respondent contends that the delay has not been satisfactorily explained and that the Applicant had sufficient time within which to file the appeal. The Respondent contends that proceedings were ready by 8 th October 2024 and a certified copy of the judgement was ready on 9 th October 2024. The Respondent did not however attach any proof that indeed the proceedings were ready by 8 th October 2024.
6. The Application was canvassed by way of submissions and both parties filed written submissions in support of their positions. I have considered the application, the affidavits on record and the submissions of counsel.
Issue for determination
7. The issue for determination is;
whether the Applicant has established sufficient cause to warrant the exercise of this Court's discretion in extending time for the filing of the appeal .
8. The power of the High Court to admit an appeal out of time is donated by Section 349 of the Criminal Procedure Code which provides:
"An appeal shall be entered within fourteen days of the date of the order or sentence appealed against:
Provided that the court to which the appeal is made may, for good cause, admit an appeal after the period of fourteen days has elapsed."
7. The provision grants the Court a wide discretionary power to extend time where good cause is demonstrated. The discretion must, however, be exercised judiciously and upon consideration of all the circumstances of the case.
8. In considering whether to extend time, courts have generally taken into account factors such as the length of delay, the reason for the delay, the degree of prejudice likely to be suffered by the Respondent, the public interest involved and whether the intended appeal raises arguable issues. These principles were succinctly set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2013] KECA 113 (KLR) where the Court emphasized that extension of time is an equitable remedy to be granted on a case-by-case basis. Although that decision arose in a civil context, the principles enunciated therein have been applied consistently in determining applications for enlargement of time.
9. In the present case, judgment was delivered on 8th October 2024. The statutory period for lodging the appeal expired on or about 22nd October 2024. The appeal was eventually filed on 27th November 2024. The delay is therefore slightly over one month beyond the prescribed period.
10. From the record, it is not clear when the Applicant had the benefit of certified proceedings as the proceedings attached to the Petition of Appeal were certified on 25 th March 2025 however the judgment is dated 9th October 2024.
11. The Court takes judicial notice of the institutional processes involved in public prosecutions, particularly where a decision to appeal must undergo administrative and legal review before authorization is granted. While such processes do not automatically excuse delay, they are relevant considerations when assessing whether the delay is excessive or prejudicial.
12. More importantly, no material has been placed before the Court demonstrating that the Respondent will suffer substantial prejudice if leave is granted. The Respondent's principal complaint is the delay itself.
13. The Court is also mindful that criminal proceedings engage significant public interests. Where the Director of Public Prosecutions seeks to challenge a decision believed to be erroneous, the interests of justice generally favour determination of the dispute on its merits unless the delay is so prolonged or prejudicial as to render such determination unjust.
14. In Leo Sila Mutiso v Rose Hellen Wangari Mwangi [1999] 2 EA 231 , the Court emphasized that the length of delay, the explanation for the delay, the chances of success of the intended appeal and the degree of prejudice to the respondent are relevant considerations in applications seeking enlargement of time. Applying those principles to the present matter, I am satisfied that the delay herein is not inordinate and that the interests of justice would be better served by allowing the intended appeal to be heard on its merits.
15. The right of appeal is an important component of the administration of justice and, where circumstances permit, courts should lean in favour of substantive determination rather than shutting out a litigant from the seat of justice on account of a relatively short delay.
16. I am not persuaded that the delay in the circumstances of this case can be described as inordinate. The period involved is relatively short and does not disclose indolence or a deliberate disregard of the law.
Final orders
17. Having considered all the circumstances of the case, I am satisfied that sufficient cause has been shown to warrant the exercise of this Court's discretion under Section 349 of the Criminal Procedure Code.
18. Consequently, the Notice of Motion is merited.
19. Accordingly, leave is hereby granted to the Applicant to file and prosecute the appeal out of time.
20. The Petition of Appeal dated 27th November 2024 is hereby deemed as duly filed and served.
Ruling delivered virtually on 29 th May 2025