REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL MISC APP NO. E005 OF 2026
IN THE MATTERS OF SECTION 349 OF THE CRIMINAL PROCEDURE
CODE CAP 75 LAW OF KENYA
AND
IN THE MATTERS OF ARTICLES 50(2)(Q), 22, 23 OF THE CONSTITUTION
OF KENYA 2010
AND
IN THE MIATTERS OF ROBBERY WITH VIOLENCE CONTRARY TO
SECTION 296(2) OF THE PENAL CODE
JOSEPH MBEA ACHOTI Alias ZEDDY………………………………….APPLICANT
VERSUS
REPUBLIC……………………………………………………………..……RESPONDENT
(Being an application for appeal out of time from the orders, decisions and
findings of Hon Jacinta A. Owiti (Mrs) PM. Judgment delivered on 20.06.2018)
Coram:
Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
Introduction
1. The background is that the Applicant was arraigned in Court on 2nd October
2018 charged with the offence of robbery with violence contrary to Section
295 as read with Section 296(2) of the Penal Code.
Particulars of offence:
Page 1 of 6
Criminal Misc. Application No. E005 of 2026
2. On the 27th day of Septebmer 2017 at around 1200hrs at Ebumbaye village
Esabalo Sub Location within Vihiga County jointly with others not before
Court while being armed with dangerous weapons namely pangas and torches
robbed Christine Khagai Otuoma of her handbag brown in colour, a phone
charger, assorted body creams, all valued at Kshs 12000/= and immediately
before or immediately after the time of such robbery used violence on the said
Christine Khagai Otuoma.
3. It is from these facts that the Applicant was tried by the State and eventually
found guilty, convicted and sentenced by the learned trial Magistrate as
follows:
“Having analyzed the evidence on record I find that the Prosecution has
failed to prove its case against Accused 2 and Juvenile beyond any
reasonable doubt hence given the benefit of doubt and acquitted in Counts
1, 2 and 3. DW2 is acquitted in the alternative charge. However I find
that the Prosecution has proved its case against DW1 (Accused 1) beyond
any reasonable doubt hence find him guilty in Counts 1, 2 and 3 in
accordance with Section 215 of the Criminal Procedure Code. The
Probation Officers Report dated 9/7/2018 is hereby perused and content
noted. The report is suitable to him. However, the law regarding Section
296(2) of the Penal Code has not been amended. The Court hereby
proceeds to sentence the Offender to death in accordance with Section
296(2) of the Penal Code. Right of appeal 14 days explained.
4. The record speaks for itself that the Applicant was cautioned to file his appeal
within 14 days but as the following application demonstrates, he did not
comply with the timeline hence why he is before this Court through the
motion herein under.
5. Before this Court is a Notice of Motion dated 12th February 2026, the
Applicant seeks the following orders:
a. May this court be pleased to hear and determine this application.
b. May this court be pleased to grant the applicant a leave to appeal out of
time.
Page 2 of 6
Criminal Misc. Application No. E005 of 2026
c. May this court certify this application urgent and hear it on priority basis.
d. May this court waive any fee/cost involved and see to it that the applicant
shall be present at the hearing thereof.
6. The application is based on grounds that:
a. The applicant's right to appeal
b. The applicant's appeal raises points of law and that have high chances of
success
c. The delay caused due to case backlog in the Kakamega High Court in the
previous appeal, a file that was later sent to Vihiga High Court that made
new directions that I should make afresh appeal.
d. More grounds in the sworn affidavit and others to be at the hearing thereof
7. In support of the application is the annexed affidavit of the Applicant who
deponed as follows:
a. That I am a Kenyan male adult of sound mind. hence competent and
indisposition to make an oath and swear this affidavit.
b. That I was arrested. charged, convicted and sentenced to serve a death
sentence in an offence of Robbery with violence contrary to Section 296(2)
of the Penal Code.
c. That I wish to appeal against the same based on my principal grounds of
law that have overwhelming chances of' success.
d. That the case was not proved beyond a reasonable doubt standard.
e. That the doctrine of recent possession was not proved due to unacceptable
search and recovery done by non-police officers and without search
warrant.
f. That I will suffer irreparable loss if orders sought will not be granted.
8. Based on the above, this Court is mandated to answer the question as to
whether the Applicant has met the threshold for extension of time to file his
appeal.
Decision
9. In our jurisdiction, to file an appeal out time one must formally apply for an
Page 3 of 6
Criminal Misc. Application No. E005 of 2026
extension of time under Section 349 of the Criminal Procedure Code or Court
of Appeal Rules. The Courts evaluate this kind of applications based on the
length of the delays, the reasons provided by the Applicant, prejudice to the
Respondent and the appeal’s prospect of success.
10. The very concise guiding principles on extension of time have been extensively
developed under the civil branch of law but they apply in pari materia and
mutatis mutandis in the province of criminal law. As the following authorities
do demonstrate: In the case of Raila Odinga v IEBC Petition No. 5 of 2013
the Supreme Court while addressing the same set of facts on exercise of
discretion to extend timelines which have already lapsed within the scheme
of legislation as outlined by Parliament, has the discretion to extend time
applying the principle of substantial justice rather than technicalities as
proclaimed in Article 159 of the Constitution.
11. Given the Applicant’s human fallibility, blunders and mistakes are bound to
occur and therefore extension of time though not a right can be prayed for
and granted by the Court while being guided by the principles in the following
authorities:
"The discretion under rule 4 is unfettered, but it has to be exercised
judicially, not on whim, sympathy or caprice. I take note that in exercising
my discretion l ought to be guided by consideration of the factors stated in
previous decisions of this Court including, but not limited to, the period of
delay, the reasons for the delay, the degree of prejudice to the respondent
and interested parties if the application is granted, and whether the matter
raises issues of public importance. In Henry Mukora Mwangi v Charles
Gichina Mwangi-Civil Application No. Nai 26 of 2004, this Court held:-3035
"It has been stated time and again that in an application under rule 4
of the Rules the learned single Judge is called upon to exercise his
discretion which discretion is unfettered. It may be appropriate to re
emphasize this principle by referring to the decision in Mwangi v
Kenya Airways Ltd. [2003] KLR 486 in which this Court stated:- "Over
the years, the Court has, of course set out guidelines on what a single
Page 4 of 6
Criminal Misc. Application No. E005 of 2026
Judge should consider when dealing with an application for extension
of time under rule 4 of the Rules. For instance in Leo Sila Mutiso -vs-
Rose Hellen Wangari Mwangi-Civil Application No Nai. 255 of 1997
(unreported), the Court expressed itself thus:-
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;
thirdly (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."
12. The law of limitation is founded on public policy. It is enshrined in the legal
maxim “interest reipublicae ut sit finis litium” i.e. it is for the general welfare
that a period of limitation be put to litigation. The object is to put an end to
every legal remedy and to have a fixed period of life for every litigation as it is
futile to keep any litigation or dispute pending indefinitely. Even public policy
requires that there should be an end to the litigation otherwise it would be a
dichotomy if the litigation is made immortal vis-a-vis the litigating parties i.e.
human beings, who are mortals.
13. The appeal by this Applicant has taken quite some time but given the gravity
of the offence and the Applicant was not represented by Legal Counsel he
must have missed the timeline set out in the Court of 14 days in which he
could have preferred his appeal for consideration by the High Court. It is trite
law that Courts should not adopt a prejudicial or an injustice-oriented
approach in dealing with applications on extension of time for an applicant to
file his or her appeal. It is the expectation of the Constitution that there be a
purposive interpretation of the law on extension of time so as to advance
substantial justice.
Page 5 of 6
Criminal Misc. Application No. E005 of 2026
14. Generally within our legal system, various Courts have adopted a judiciously
liberal approach in interpreting and construing the phrase “sufficient cause”
in the proviso of Section 349 of the CPC to condone delay to enable the Courts
to do substantial justice in order to apply the law in a meaningful manner so
that the ends of justice can be met.
15. This is a man who was tried, found guilty and convicted to suffer death, the
shock he may have received may have occasioned even remembering that the
Court had decreed that the fourteen (14) days was meant for him to file an
appeal to a Superior Court. In this connection, I exercise judicial discretion
to enlarge time for him to file an appeal out of time on both conviction and
sentence. It will be beneficial to state that the proceedings have already been
typed and it is expected that within thirty (30) days from this ruling he could
have filed his appeal.
DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE
Page 6 of 6
Criminal Misc. Application No. E005 of 2026
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL MISC APP NO. E005 OF 2026
IN THE MATTERS OF SECTION 349 OF THE CRIMINAL PROCEDURE
CODE CAP 75 LAW OF KENYA
AND
IN THE MATTERS OF ARTICLES 50(2)(Q), 22, 23 OF THE CONSTITUTION
OF KENYA 2010
AND
IN THE MIATTERS OF ROBBERY WITH VIOLENCE CONTRARY TO
SECTION 296(2) OF THE PENAL CODE
JOSEPH MBEA ACHOTI Alias ZEDDY………………………………….APPLICANT
VERSUS
REPUBLIC……………………………………………………………..……RESPONDENT
(Being an application for appeal out of time from the orders, decisions and
findings of Hon Jacinta A. Owiti (Mrs) PM. Judgment delivered on 20.06.2018)
Coram:
Before Justice R. Nyakundi
Mr. Leina Prosecution Counsel for the State
RULING
Introduction
1. The background is that the Applicant was arraigned in Court on 2nd October
2018 charged with the offence of robbery with violence contrary to Section
295 as read with Section 296(2) of the Penal Code.
Particulars of offence:
Page 1 of 6
Criminal Misc. Application No. E005 of 2026
2. On the 27th day of Septebmer 2017 at around 1200hrs at Ebumbaye village
Esabalo Sub Location within Vihiga County jointly with others not before
Court while being armed with dangerous weapons namely pangas and torches
robbed Christine Khagai Otuoma of her handbag brown in colour, a phone
charger, assorted body creams, all valued at Kshs 12000/= and immediately
before or immediately after the time of such robbery used violence on the said
Christine Khagai Otuoma.
3. It is from these facts that the Applicant was tried by the State and eventually
found guilty, convicted and sentenced by the learned trial Magistrate as
follows:
“Having analyzed the evidence on record I find that the Prosecution has
failed to prove its case against Accused 2 and Juvenile beyond any
reasonable doubt hence given the benefit of doubt and acquitted in Counts
1, 2 and 3. DW2 is acquitted in the alternative charge. However I find
that the Prosecution has proved its case against DW1 (Accused 1) beyond
any reasonable doubt hence find him guilty in Counts 1, 2 and 3 in
accordance with Section 215 of the Criminal Procedure Code. The
Probation Officers Report dated 9/7/2018 is hereby perused and content
noted. The report is suitable to him. However, the law regarding Section
296(2) of the Penal Code has not been amended. The Court hereby
proceeds to sentence the Offender to death in accordance with Section
296(2) of the Penal Code. Right of appeal 14 days explained.
4. The record speaks for itself that the Applicant was cautioned to file his appeal
within 14 days but as the following application demonstrates, he did not
comply with the timeline hence why he is before this Court through the
motion herein under.
5. Before this Court is a Notice of Motion dated 12th February 2026, the
Applicant seeks the following orders:
a. May this court be pleased to hear and determine this application.
b. May this court be pleased to grant the applicant a leave to appeal out of
time.
Page 2 of 6
Criminal Misc. Application No. E005 of 2026
c. May this court certify this application urgent and hear it on priority basis.
d. May this court waive any fee/cost involved and see to it that the applicant
shall be present at the hearing thereof.
6. The application is based on grounds that:
a. The applicant's right to appeal
b. The applicant's appeal raises points of law and that have high chances of
success
c. The delay caused due to case backlog in the Kakamega High Court in the
previous appeal, a file that was later sent to Vihiga High Court that made
new directions that I should make afresh appeal.
d. More grounds in the sworn affidavit and others to be at the hearing thereof
7. In support of the application is the annexed affidavit of the Applicant who
deponed as follows:
a. That I am a Kenyan male adult of sound mind. hence competent and
indisposition to make an oath and swear this affidavit.
b. That I was arrested. charged, convicted and sentenced to serve a death
sentence in an offence of Robbery with violence contrary to Section 296(2)
of the Penal Code.
c. That I wish to appeal against the same based on my principal grounds of
law that have overwhelming chances of' success.
d. That the case was not proved beyond a reasonable doubt standard.
e. That the doctrine of recent possession was not proved due to unacceptable
search and recovery done by non-police officers and without search
warrant.
f. That I will suffer irreparable loss if orders sought will not be granted.
8. Based on the above, this Court is mandated to answer the question as to
whether the Applicant has met the threshold for extension of time to file his
appeal.
Decision
9. In our jurisdiction, to file an appeal out time one must formally apply for an
Page 3 of 6
Criminal Misc. Application No. E005 of 2026
extension of time under Section 349 of the Criminal Procedure Code or Court
of Appeal Rules. The Courts evaluate this kind of applications based on the
length of the delays, the reasons provided by the Applicant, prejudice to the
Respondent and the appeal’s prospect of success.
10. The very concise guiding principles on extension of time have been extensively
developed under the civil branch of law but they apply in pari materia and
mutatis mutandis in the province of criminal law. As the following authorities
do demonstrate: In the case of Raila Odinga v IEBC Petition No. 5 of 2013
the Supreme Court while addressing the same set of facts on exercise of
discretion to extend timelines which have already lapsed within the scheme
of legislation as outlined by Parliament, has the discretion to extend time
applying the principle of substantial justice rather than technicalities as
proclaimed in Article 159 of the Constitution.
11. Given the Applicant’s human fallibility, blunders and mistakes are bound to
occur and therefore extension of time though not a right can be prayed for
and granted by the Court while being guided by the principles in the following
authorities:
"The discretion under rule 4 is unfettered, but it has to be exercised
judicially, not on whim, sympathy or caprice. I take note that in exercising
my discretion l ought to be guided by consideration of the factors stated in
previous decisions of this Court including, but not limited to, the period of
delay, the reasons for the delay, the degree of prejudice to the respondent
and interested parties if the application is granted, and whether the matter
raises issues of public importance. In Henry Mukora Mwangi v Charles
Gichina Mwangi-Civil Application No. Nai 26 of 2004, this Court held:-3035
"It has been stated time and again that in an application under rule 4
of the Rules the learned single Judge is called upon to exercise his
discretion which discretion is unfettered. It may be appropriate to re
emphasize this principle by referring to the decision in Mwangi v
Kenya Airways Ltd. [2003] KLR 486 in which this Court stated:- "Over
the years, the Court has, of course set out guidelines on what a single
Page 4 of 6
Criminal Misc. Application No. E005 of 2026
Judge should consider when dealing with an application for extension
of time under rule 4 of the Rules. For instance in Leo Sila Mutiso -vs-
Rose Hellen Wangari Mwangi-Civil Application No Nai. 255 of 1997
(unreported), the Court expressed itself thus:-
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;
thirdly (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."
12. The law of limitation is founded on public policy. It is enshrined in the legal
maxim “interest reipublicae ut sit finis litium” i.e. it is for the general welfare
that a period of limitation be put to litigation. The object is to put an end to
every legal remedy and to have a fixed period of life for every litigation as it is
futile to keep any litigation or dispute pending indefinitely. Even public policy
requires that there should be an end to the litigation otherwise it would be a
dichotomy if the litigation is made immortal vis-a-vis the litigating parties i.e.
human beings, who are mortals.
13. The appeal by this Applicant has taken quite some time but given the gravity
of the offence and the Applicant was not represented by Legal Counsel he
must have missed the timeline set out in the Court of 14 days in which he
could have preferred his appeal for consideration by the High Court. It is trite
law that Courts should not adopt a prejudicial or an injustice-oriented
approach in dealing with applications on extension of time for an applicant to
file his or her appeal. It is the expectation of the Constitution that there be a
purposive interpretation of the law on extension of time so as to advance
substantial justice.
Page 5 of 6
Criminal Misc. Application No. E005 of 2026
14. Generally within our legal system, various Courts have adopted a judiciously
liberal approach in interpreting and construing the phrase “sufficient cause”
in the proviso of Section 349 of the CPC to condone delay to enable the Courts
to do substantial justice in order to apply the law in a meaningful manner so
that the ends of justice can be met.
15. This is a man who was tried, found guilty and convicted to suffer death, the
shock he may have received may have occasioned even remembering that the
Court had decreed that the fourteen (14) days was meant for him to file an
appeal to a Superior Court. In this connection, I exercise judicial discretion
to enlarge time for him to file an appeal out of time on both conviction and
sentence. It will be beneficial to state that the proceedings have already been
typed and it is expected that within thirty (30) days from this ruling he could
have filed his appeal.
DATED & DELVERED AT VIHIGA THIS 18TH DAY OF MAY 2026.
.......................................
R. NYAKUNDI
JUDGE
Page 6 of 6
Criminal Misc. Application No. E005 of 2026