REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL Misc APP NO. E008 OF 2026
APPLICANT
REPUBLIC RESPONDENT Coram:
1. The applicant was arraigned before a trial court ion Criminal case NO. E236 of 2023 charged with the offence of murder of attempted murder contrary to section 220(a) of the penal code. The particulars of the offence were that on diverse dates between 10th February 2023 to 19th February 2023 at Ebusitsinis sub location, Emasaba location, Luanda sub county within Vihiga county, attempted unlawfully to cause the death of Sherly Awour by cutting her using a panga and pouring acid on her and locking her in the house for several days without food.
2. The applicant went through a full trial and the learned trial magistrate in considering the evidence ruled as follows:
a. In light of the foregoing and having considered the aforesaid principles which I have distilled in mind as well as the age of the offender, the circumstances of the case and the magnitude of the offence.
b. I have also taken note of the seriousness of the offence, the accused person's mitigation, being a first-time offender, trauma caused to the victim and the principles of sentencing.
c. In the circumstances of this case, I hereby sentence the accused person to twenty (20) years imprisonment to run from the date of this sentence. The said sentence will however, be inclusive ofthe period from 29th March, 2023
to 15th December, 2025 when the accused person has been in custody. The accused person has a right of appeal within 14 days hereof.
3. The applicant had 14 days to approach the High Court to re-examine the record on both conviction and sentence. It appears from the notice of motion dated 1 I th February 2026 he was not able to meet the deadline on limitation of time of 14 days. He therefore seeks the leave of this court to enlarge time.
4. The motion before court is dated 17 th February 2026 in which the applicant seeks the following orders:
a. May this court be pleased to hear and determine this application.
b. May this court certify this application as urgent and be heard on priority basis.
c. May this court be pleased to grant an allowance order to appeal out of time.
d. Or any other order this court shall deem just and fit to the applicant,
5. The application is based on the following arguments hereunder; -
a. That applicant's right to appeal.
b. That the applicant is a pauper and in prison.
c. That lack of an advocate.
d. That inability to obtain true certified copy of the trial records within reasonable time.
6. In support if the application is the affidavit of one Julius Omuyaku Ogola who deposed as follows:
a. That I am an adult make of sound mind competent to make oath and swear this affidavit.
b. That I was arrested, arraigned, charged and convicted for the offence of attempted murder.
c. That I was sentenced to twenty (20) years imprisonment.
d. That I was not fin-nished with the true certified copy of the trial records during sentencing to enable me file my appeal within time.
Decision
7. The question to be answered by this court is whether the applicant has met the criteria outlined in Section 349 of the CPC for this court to extend time for filing his criminal appeal, The principles both in civil and criminal law upon which the court can exercise discretion to enlarge time are like Siamese twins as can be deduced from the authorities with regard to this matter. Notwithstanding that position in law the superior courts have dealt with this issued on enlargement of time under Section 349 of the CPC as herein under demonstrated:
a. Paulo v Republic [2024] KECA 1546 (KLR) (Criminal Appeal E136 of 2024): The Court of Appeal, in a 2024 ruling, considered an application to file an appeal out of time from the High Court, reinforcing that even long delays can be condoned if a plausible explanation is provided and the applicant is serving a substantial sentence.
b. Republic v Mwenesi (Miscellaneous Criminal Application) (Summarized at Jibudocs): The High Court held that extension of time is an equitable remedy, and the applicant bears the burden to justify the delay, highlighting that the court evaluates case-specific discretion, potential prejudice to the state, and the timeliness of the application.
c. Nyambura v Republic (Criminal Appeal El 03 of 2022): The Court noted that even if a party has a right of appeal, it must be exercised within time, but delay can be excused if there are compelling circumstances (e.g., in this case, the court examined the likelihood of success ofthe appeal).
d. High Court Ruling (HCCR 2016/507): The High Court stated that under Section 349, for an appeal filed after 14 days, the court must be satisfied that the delay was due to the inability to obtain a copy of the judgment or record in time, or other good cause.
8. This is in province of criminal law in which the courts have developed the key principles for the exercise of jurisdiction of enlarge time. The key factors but
not an exhaustive list which provide the anchor in law on enlargement of time include the following:
• Length of the Delay: While no maximum time is set, the delay must be explained from the date ofjudgment to the date offiling the application.
• Reason for the Delay: A "plausible and satisfactory" explanation is required, such as failure to receive timely legal aid, lack of conviction records, or illness.
• Prospects of Success: The intended appeal should not be frivolous and must have arguable grounds.
• Prejudice: Whether the respondent (usually the Republic) will suffer prejudice.
• Interests of Justice: The Court of Appeal emphasized that in criminal cases, a right of appeal should not be easily denied due to technicalities if a substantial injustice has occurred.
9. This is in so far as the ambit of the jurisprudential dicta in criminal is concerned but why do I refer to the metaphor of Siamese twins in both criminal and civil procedural law in so far as the factors of significant to persuade the court to extent time. Let us have a look at the guiding principles in the landmark decisions notoriously referred to in every litigation landscape on enlargement of time. This is to draw the differentia minimum and maximum as to the interlocking principles in the two branches of law. In the case of Nicholas Salat Vs IEBC & 7 Others the Supreme court made the following observations on the principles to be considered in determining an application on extension of time as follows:
a. Extension oftime is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
d. Thether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
e. Whether there will be any prejudice suffered by the respondents if the extension is granted; f Whether the application has been brought without undue delay; and
g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time."
10. In the instant case the trial court decision was arrived at 15 th December 2025 and the applicant was expected under our procedural law to file an appeal if aggrieved with the judgment on conviction and sentence within 14 days from the above date. However, this did not happen and 14 days lapsed moving the case on the proviso under Section 349 of the CPC. The applicant then moves a motion for enlargement of time to file an appeal out of time dated 15 th January 2026 but filed in court on 17 th February 2026 in which he averse his affidavit that he was unable to file an appeal because he was not furnished of the true copy of the trial court.
11. In considering this matter in detail I bear in mind that the applicant along was not represented by legal counsel. He is also not knowledgeable in matters of both procedural and substantive law of our legal system. He has explained himself on matters to do with being supplied with the certified copy of the trial bundle of the trial court. In my view this is necessary for the applicant to prepare the memorandum of appeal which is actually the instrument which lays the foundation to impeach the impugned judgment of the trial court.
From the time of judgment of the trial court which is indicative of 15 th December 2025 and the period upon which the memorandum of enlarging time was received and filed in the High Court Registry the overage of time is about two months two days. It is not disputed that from a self-represented applicant that the period required for him to file appeal of 14 days the overage time cannot be said to be unreasonable delay. It is also constitutional imperative that any person convicted of a criminal offence shall have the right
to have his/her conviction and sentence reviewed by a superior court clothed with jurisdiction. From my reading of this application, that is the desire expressed by the applicant to file an appeal to challenge the judgment of the Trial Court.
12. In the context of the constitution 2010 Article 27 on Equality before the law, Article 47 on Fair Administrative Action, Article 48 on access to Justice and Article 50 on Fair Trial Rights remains to be the embodiment to the law when the court is considering the question of enlargement of time for a party to petition a higher court to have the impugned judgment or ruling be reviewed within the guidelines already settled in the law. This issue of a fair trial is so fundamental that the African Commission on Human Rights and People address itself to the general principles applicable to all general proceedings as follows:
a. equality of arms between the parties to a proceedings, whether they be administrative, civil, criminal, or military;
b. equality of all persons before any judicial body without any distinction whatsoever as regards race, colour, ethnic origin, sex, gender, age, religion, creed, language, political or other convictions, national or social origin, means, disability, birth, status or other circumstances;
c. equality of access by women and men to judicial bodies and equality before the law in any legal proceedings;
d. respect for the inherent dignity of the human persons, especially of women who participate in legal proceedings as complainants, witnesses, victims or accused;
e. adequate opportunity to prepare a case, present arguments and evidence and to challenge or respond to opposing arguments or evidence; an entitlement to consult and be represented by a legal representative or other qualified persons chosen by the party at all stages of the proceedings;
g. an entitlement to the assistance of an interpreter if he or she cannot understand or speak the language used in or by the judicial body;
h. an entitlement to have a party's rights and obligations affected only by a decision based solely on evidence presented to the judicial body;
i. an entitlement to a determination of their rights and obligations without undue delay and with adequate notice of and reasons for the decisions; and an entitlement to an appeal to a higher judicial body
13. When it comes to criminal administration of justice and its impact upon the vulnerable and marginalized class of our citizens not knowledgeable in law cannot just be wished away by relying in the maxim that ignorance of the law is no defence. The doctrine of protecting vulnerable and marginalizes citizens who go through a legal process in the adjudication of cases in the realm of criminal law and who lack knowledge of the law in primarily rooted in equity, specifically designed to prevent the exploitation of the illiterate, poor or uneducated individuals. The key legal principles in our constitution under Article 10 on National Values and Principles of Governance, Article 27 Before the Law and Non-Discrimination, Article 22 on the justification and
Limitation Clauses on Fundamental Rights and Freedoms, Article 26 on the Right To Life, Article 47 on Fair Administrative action, Article 35 a Right to
Access to Information held by the State, Article 48 on Access to Justice and Article 50 on the Right to a fair trial are all symbolic in ensuring substantive justice in not only seems to be done but to be actualized for every citizen in this constitution democracy. The maxim that ignorance of the law is no defence should not be used to occasion prejudice or denial of justice to every person, individual citizen etc. seeking a remedy before any court of law properly constituted by the constitution. This maxim also should not be used to shift the burden of proof by the party with superior knowledge or standing against the vulnerable and marginalized class of citizens not knowledgeable to the law.
14. The law, in my view, ought to rethink and unmask the doctrine that is often spoken around by scholars and jurists, namely, that ignorance of the law is no excuse, as a foundational canon, so as to appreciate the sheer volume and complexity of the law contained in the various enabling statutes and legal policies enacted by Parliament, which even citizens who are scholarly read in the various fields would find it impossible to internalize as the clauses therein impact their daily lives. From this perspective, it is even more difficult, if not impossible, for an ordinary citizen to know every law, and this in essence undermines the fairness of the rule that ignorance of the law is no defence, For the vulnerable and marginalized class of citizens of this country who hold a legitimate expectation to navigate the legal system, this maxim, if applied, violates the principles of fairness, equity, equality, human rights, inclusivity, and participation in the legal processes, and the right of access to justice as provided for under Article 48 of the Constitution.
15. This court taking the facts of this case on their face value as pleaded by the applicant as to why he was not able to file his appeal within time is satisfied that the explanation meets the reasonable standards of sufficient cause to grant the orders on enlargement of time and there is no evidence that the respondent would suffer prejudice or occasion an injustice by this order as prayed by the applicant.
16. As a consequence of the above dicta the following declarations shall abide:
a. The applicant's motion succeeds in terms of section 349 of the CPC to enlarge time and condonation for the delay has been demonstrated by the
Applicant
b. That the Deputy Registrar of the High Court invoking her ministerial powers cause the trial bundle to be prepared legibly so and shared with the applicant for purposes ofpreparing the record ofappeal.
c. That the action by the Deputy Registrar be undertaken and fiÆlfilled within
30 days from todays date.
d. That the Applicant/ Intended Appellant be at liberty to file his appeal to this court within 21 days from the date of receipt of the record of appeal.
e. A status conference be held on 10th of June 2026 before the Deputy Registrars to monitor compliance tailored to have the appeal admitted for hearing.
IN THE HIGH COURT AT VIHIGA
CRIMINAL Misc APP NO. E008 OF 2026
APPLICANT
REPUBLIC RESPONDENT Coram:
1. The applicant was arraigned before a trial court ion Criminal case NO. E236 of 2023 charged with the offence of murder of attempted murder contrary to section 220(a) of the penal code. The particulars of the offence were that on diverse dates between 10th February 2023 to 19th February 2023 at Ebusitsinis sub location, Emasaba location, Luanda sub county within Vihiga county, attempted unlawfully to cause the death of Sherly Awour by cutting her using a panga and pouring acid on her and locking her in the house for several days without food.
2. The applicant went through a full trial and the learned trial magistrate in considering the evidence ruled as follows:
a. In light of the foregoing and having considered the aforesaid principles which I have distilled in mind as well as the age of the offender, the circumstances of the case and the magnitude of the offence.
b. I have also taken note of the seriousness of the offence, the accused person's mitigation, being a first-time offender, trauma caused to the victim and the principles of sentencing.
c. In the circumstances of this case, I hereby sentence the accused person to twenty (20) years imprisonment to run from the date of this sentence. The said sentence will however, be inclusive ofthe period from 29th March, 2023
to 15th December, 2025 when the accused person has been in custody. The accused person has a right of appeal within 14 days hereof.
3. The applicant had 14 days to approach the High Court to re-examine the record on both conviction and sentence. It appears from the notice of motion dated 1 I th February 2026 he was not able to meet the deadline on limitation of time of 14 days. He therefore seeks the leave of this court to enlarge time.
4. The motion before court is dated 17 th February 2026 in which the applicant seeks the following orders:
a. May this court be pleased to hear and determine this application.
b. May this court certify this application as urgent and be heard on priority basis.
c. May this court be pleased to grant an allowance order to appeal out of time.
d. Or any other order this court shall deem just and fit to the applicant,
5. The application is based on the following arguments hereunder; -
a. That applicant's right to appeal.
b. That the applicant is a pauper and in prison.
c. That lack of an advocate.
d. That inability to obtain true certified copy of the trial records within reasonable time.
6. In support if the application is the affidavit of one Julius Omuyaku Ogola who deposed as follows:
a. That I am an adult make of sound mind competent to make oath and swear this affidavit.
b. That I was arrested, arraigned, charged and convicted for the offence of attempted murder.
c. That I was sentenced to twenty (20) years imprisonment.
d. That I was not fin-nished with the true certified copy of the trial records during sentencing to enable me file my appeal within time.
Decision
7. The question to be answered by this court is whether the applicant has met the criteria outlined in Section 349 of the CPC for this court to extend time for filing his criminal appeal, The principles both in civil and criminal law upon which the court can exercise discretion to enlarge time are like Siamese twins as can be deduced from the authorities with regard to this matter. Notwithstanding that position in law the superior courts have dealt with this issued on enlargement of time under Section 349 of the CPC as herein under demonstrated:
a. Paulo v Republic [2024] KECA 1546 (KLR) (Criminal Appeal E136 of 2024): The Court of Appeal, in a 2024 ruling, considered an application to file an appeal out of time from the High Court, reinforcing that even long delays can be condoned if a plausible explanation is provided and the applicant is serving a substantial sentence.
b. Republic v Mwenesi (Miscellaneous Criminal Application) (Summarized at Jibudocs): The High Court held that extension of time is an equitable remedy, and the applicant bears the burden to justify the delay, highlighting that the court evaluates case-specific discretion, potential prejudice to the state, and the timeliness of the application.
c. Nyambura v Republic (Criminal Appeal El 03 of 2022): The Court noted that even if a party has a right of appeal, it must be exercised within time, but delay can be excused if there are compelling circumstances (e.g., in this case, the court examined the likelihood of success ofthe appeal).
d. High Court Ruling (HCCR 2016/507): The High Court stated that under Section 349, for an appeal filed after 14 days, the court must be satisfied that the delay was due to the inability to obtain a copy of the judgment or record in time, or other good cause.
8. This is in province of criminal law in which the courts have developed the key principles for the exercise of jurisdiction of enlarge time. The key factors but
not an exhaustive list which provide the anchor in law on enlargement of time include the following:
• Length of the Delay: While no maximum time is set, the delay must be explained from the date ofjudgment to the date offiling the application.
• Reason for the Delay: A "plausible and satisfactory" explanation is required, such as failure to receive timely legal aid, lack of conviction records, or illness.
• Prospects of Success: The intended appeal should not be frivolous and must have arguable grounds.
• Prejudice: Whether the respondent (usually the Republic) will suffer prejudice.
• Interests of Justice: The Court of Appeal emphasized that in criminal cases, a right of appeal should not be easily denied due to technicalities if a substantial injustice has occurred.
9. This is in so far as the ambit of the jurisprudential dicta in criminal is concerned but why do I refer to the metaphor of Siamese twins in both criminal and civil procedural law in so far as the factors of significant to persuade the court to extent time. Let us have a look at the guiding principles in the landmark decisions notoriously referred to in every litigation landscape on enlargement of time. This is to draw the differentia minimum and maximum as to the interlocking principles in the two branches of law. In the case of Nicholas Salat Vs IEBC & 7 Others the Supreme court made the following observations on the principles to be considered in determining an application on extension of time as follows:
a. Extension oftime is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;
b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;
c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
d. Thether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
e. Whether there will be any prejudice suffered by the respondents if the extension is granted; f Whether the application has been brought without undue delay; and
g. Whether in certain cases, like election petitions, public interest should be a consideration for extending time."
10. In the instant case the trial court decision was arrived at 15 th December 2025 and the applicant was expected under our procedural law to file an appeal if aggrieved with the judgment on conviction and sentence within 14 days from the above date. However, this did not happen and 14 days lapsed moving the case on the proviso under Section 349 of the CPC. The applicant then moves a motion for enlargement of time to file an appeal out of time dated 15 th January 2026 but filed in court on 17 th February 2026 in which he averse his affidavit that he was unable to file an appeal because he was not furnished of the true copy of the trial court.
11. In considering this matter in detail I bear in mind that the applicant along was not represented by legal counsel. He is also not knowledgeable in matters of both procedural and substantive law of our legal system. He has explained himself on matters to do with being supplied with the certified copy of the trial bundle of the trial court. In my view this is necessary for the applicant to prepare the memorandum of appeal which is actually the instrument which lays the foundation to impeach the impugned judgment of the trial court.
From the time of judgment of the trial court which is indicative of 15 th December 2025 and the period upon which the memorandum of enlarging time was received and filed in the High Court Registry the overage of time is about two months two days. It is not disputed that from a self-represented applicant that the period required for him to file appeal of 14 days the overage time cannot be said to be unreasonable delay. It is also constitutional imperative that any person convicted of a criminal offence shall have the right
to have his/her conviction and sentence reviewed by a superior court clothed with jurisdiction. From my reading of this application, that is the desire expressed by the applicant to file an appeal to challenge the judgment of the Trial Court.
12. In the context of the constitution 2010 Article 27 on Equality before the law, Article 47 on Fair Administrative Action, Article 48 on access to Justice and Article 50 on Fair Trial Rights remains to be the embodiment to the law when the court is considering the question of enlargement of time for a party to petition a higher court to have the impugned judgment or ruling be reviewed within the guidelines already settled in the law. This issue of a fair trial is so fundamental that the African Commission on Human Rights and People address itself to the general principles applicable to all general proceedings as follows:
a. equality of arms between the parties to a proceedings, whether they be administrative, civil, criminal, or military;
b. equality of all persons before any judicial body without any distinction whatsoever as regards race, colour, ethnic origin, sex, gender, age, religion, creed, language, political or other convictions, national or social origin, means, disability, birth, status or other circumstances;
c. equality of access by women and men to judicial bodies and equality before the law in any legal proceedings;
d. respect for the inherent dignity of the human persons, especially of women who participate in legal proceedings as complainants, witnesses, victims or accused;
e. adequate opportunity to prepare a case, present arguments and evidence and to challenge or respond to opposing arguments or evidence; an entitlement to consult and be represented by a legal representative or other qualified persons chosen by the party at all stages of the proceedings;
g. an entitlement to the assistance of an interpreter if he or she cannot understand or speak the language used in or by the judicial body;
h. an entitlement to have a party's rights and obligations affected only by a decision based solely on evidence presented to the judicial body;
i. an entitlement to a determination of their rights and obligations without undue delay and with adequate notice of and reasons for the decisions; and an entitlement to an appeal to a higher judicial body
13. When it comes to criminal administration of justice and its impact upon the vulnerable and marginalized class of our citizens not knowledgeable in law cannot just be wished away by relying in the maxim that ignorance of the law is no defence. The doctrine of protecting vulnerable and marginalizes citizens who go through a legal process in the adjudication of cases in the realm of criminal law and who lack knowledge of the law in primarily rooted in equity, specifically designed to prevent the exploitation of the illiterate, poor or uneducated individuals. The key legal principles in our constitution under Article 10 on National Values and Principles of Governance, Article 27 Before the Law and Non-Discrimination, Article 22 on the justification and
Limitation Clauses on Fundamental Rights and Freedoms, Article 26 on the Right To Life, Article 47 on Fair Administrative action, Article 35 a Right to
Access to Information held by the State, Article 48 on Access to Justice and Article 50 on the Right to a fair trial are all symbolic in ensuring substantive justice in not only seems to be done but to be actualized for every citizen in this constitution democracy. The maxim that ignorance of the law is no defence should not be used to occasion prejudice or denial of justice to every person, individual citizen etc. seeking a remedy before any court of law properly constituted by the constitution. This maxim also should not be used to shift the burden of proof by the party with superior knowledge or standing against the vulnerable and marginalized class of citizens not knowledgeable to the law.
14. The law, in my view, ought to rethink and unmask the doctrine that is often spoken around by scholars and jurists, namely, that ignorance of the law is no excuse, as a foundational canon, so as to appreciate the sheer volume and complexity of the law contained in the various enabling statutes and legal policies enacted by Parliament, which even citizens who are scholarly read in the various fields would find it impossible to internalize as the clauses therein impact their daily lives. From this perspective, it is even more difficult, if not impossible, for an ordinary citizen to know every law, and this in essence undermines the fairness of the rule that ignorance of the law is no defence, For the vulnerable and marginalized class of citizens of this country who hold a legitimate expectation to navigate the legal system, this maxim, if applied, violates the principles of fairness, equity, equality, human rights, inclusivity, and participation in the legal processes, and the right of access to justice as provided for under Article 48 of the Constitution.
15. This court taking the facts of this case on their face value as pleaded by the applicant as to why he was not able to file his appeal within time is satisfied that the explanation meets the reasonable standards of sufficient cause to grant the orders on enlargement of time and there is no evidence that the respondent would suffer prejudice or occasion an injustice by this order as prayed by the applicant.
16. As a consequence of the above dicta the following declarations shall abide:
a. The applicant's motion succeeds in terms of section 349 of the CPC to enlarge time and condonation for the delay has been demonstrated by the
Applicant
b. That the Deputy Registrar of the High Court invoking her ministerial powers cause the trial bundle to be prepared legibly so and shared with the applicant for purposes ofpreparing the record ofappeal.
c. That the action by the Deputy Registrar be undertaken and fiÆlfilled within
30 days from todays date.
d. That the Applicant/ Intended Appellant be at liberty to file his appeal to this court within 21 days from the date of receipt of the record of appeal.
e. A status conference be held on 10th of June 2026 before the Deputy Registrars to monitor compliance tailored to have the appeal admitted for hearing.