REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC APP. E022 OF 2026
IN THE MATTERS OF SECTION 349 OF THE CRIMINAL PROCEDURE CODE
AND
IN THE MATTERS OF ARTICLE 22, 23, 50(2)(Q),159(2) (a, b, d) COK 2010
AND
IN THE MATTERS OF DEFILEMENT CASE CONTRARY TO SECTION 8(1) AS
READ WITH SECTION 8(2) OF THE SOA NO. 3 OF 2006
NAHASHON AMUKOA OTENYA……………………………..……………..APPLICANT
VERSUS
RESPONDENT……………………………………………………………………REPUBLIC
Coram: Before Justice R. Nyakundi
Leina Davies for the State
RULING
1. Before this Court is a notice of motion dated 23rd February 2026 which 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 the leave of the Court to
appeal out of time.
c. Spent.
d. May this Court waive the cost involved and see to it that the applicant
shall be present at the hearing thereof.
2. The application is based on the grounds that:
a. Article 50(2)(q) Constitution of Kenya
b. The applicant's appeal raises points of law and has overwhelming
chances of success.
c. Delay caused by inability of the appellant or his advocate to obtain a
copy of the record within a reasonable time of applying to the Court
therefore.
d. The applicant had no an advocate and a layman in law.
e. The applicant is a pauper.
f. More grounds in the sworn affidavit and others to be at the hearing
therefore.
3. In support of the application is the annexed affidavit of Nahashon Amukoa
Otenya who deponed as follows:
a. That I am a Kenyan citizen an adult male of sound mind hence competent
to make oath and swear this affidavit.
b. That I was arrested charged, convicted and sentenced to serve life
imprisonment in an offence of defilement e/section 8(2) of the SOA NO.3
of 2006.
c. That I wish to appeal against both conviction and sentence premised on
my points of law that have overwhelming chances of success.
d. That I step before this seat of justice requesting to be allowed to appeal
out of time premised on my grounds in the notice of motion and others as
herein.
Decision
4. The Criminal Procedure Code under Section 349 provides as follows:
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, and shall
so admit an appeal if it is satisfied that the failure to enter the appeal
within that period has been caused by the inability of the appellant or
his advocate to obtain a copy of the judgment or order appealed against,
and a copy of the record, within a reasonable time of applying to the
Court therefor.
5. The Court do not condone delay in filing appeal as a matter of rights. The law
provides a window for filing belated appeals which requires a formal
application detailing sufficient cause for the delay. The Court looks at the
reasonableness of the cause rather than the length of the delay.
6. The key decided cases and principles on the approach of filing of an appeal
out of time as herein under demonstrates the liberal justice oriented approach
in exercising discretion to grant leave for an applicant to file his/her appeal
out of time. Thus:
Length of the Delay: While no maximum time is set, the delay must be
explained from the date of judgment to the date of filing 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.
7. 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 significance to
persuade the Court to extend 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 of time 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. Whether 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.”
8. Similarly, the Court in the case of Basawaraj and Another versus Special Land
Acquisition Officer (2013) 14 SCC 81, while rejecting an application for
condonation of delay for lack of sufficient cause has concluded in Paragraph
15 as follows:
“The law on the issue can be summarized to the effect that where a case
has been presented in the Court beyond limitation, the applicant has to
explain the Court as to what was the “sufficient cause” which means an
adequate and enough reason which prevented him to approach the Court
within limitation. In case a party is found to be negligent, or for want of
bona fide on his part in the facts and circumstances of the case, or found
to have not acted diligently or remained inactive, there cannot be a
justified ground to condone the delay. No Court could be justified in
condoning such an inordinate delay by imposing any condition
whatsoever. The application is to be decided only within the parameters
laid down by this Court in regard to the condonation of delay. In case
there was no sufficient cause to prevent a litigant to approach the Court
on time condoning the delay without any justification, putting any
condition whatsoever, amounts to passing an order in violation of the
statutory provisions and it tantamounts to showing utter disregard to the
legislature.”
9. In the instant application I do find a case in which the facts demonstrated the
Applicant was tried, convicted under the Sexual Offences Act contrary to
Section 8(1) as read with 8(2). He was later to be sentenced to life
imprisonment on 16th December 2025, however it appears from the affidavit
that he was not able to meet the deadline of 14 days to prefer an appeal to
the High Court. There is also evidence that he was not represented by an
Advocate before the Lower Court and he may have missed during conviction
and sentence, the important pronouncement directed on the limitation of time
of 14 days for him to file an appeal.
10. I have gone through the entire record I am of the considered view that the
Applicant has satisfied the criteria for this Court to grant leave to appeal out
of time. In this respect the Deputy Registrar of the High Court to repair the
typed record of the trial Court to be shared with the Applicant within 30 days
from today’s date. Thereafter the Applicant shall be at liberty to file his
memorandum of appeal simultaneously with the record of appeal. It is so
ordered.
DATED AND DELIVERED AT VIHIGA THIS 29TH DAY OF MAY 2026
IN THE HIGH COURT AT VIHIGA
CRIMINAL MISC APP. E022 OF 2026
IN THE MATTERS OF SECTION 349 OF THE CRIMINAL PROCEDURE CODE
AND
IN THE MATTERS OF ARTICLE 22, 23, 50(2)(Q),159(2) (a, b, d) COK 2010
AND
IN THE MATTERS OF DEFILEMENT CASE CONTRARY TO SECTION 8(1) AS
READ WITH SECTION 8(2) OF THE SOA NO. 3 OF 2006
NAHASHON AMUKOA OTENYA……………………………..……………..APPLICANT
VERSUS
RESPONDENT……………………………………………………………………REPUBLIC
Coram: Before Justice R. Nyakundi
Leina Davies for the State
RULING
1. Before this Court is a notice of motion dated 23rd February 2026 which 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 the leave of the Court to
appeal out of time.
c. Spent.
d. May this Court waive the cost involved and see to it that the applicant
shall be present at the hearing thereof.
2. The application is based on the grounds that:
a. Article 50(2)(q) Constitution of Kenya
b. The applicant's appeal raises points of law and has overwhelming
chances of success.
c. Delay caused by inability of the appellant or his advocate to obtain a
copy of the record within a reasonable time of applying to the Court
therefore.
d. The applicant had no an advocate and a layman in law.
e. The applicant is a pauper.
f. More grounds in the sworn affidavit and others to be at the hearing
therefore.
3. In support of the application is the annexed affidavit of Nahashon Amukoa
Otenya who deponed as follows:
a. That I am a Kenyan citizen an adult male of sound mind hence competent
to make oath and swear this affidavit.
b. That I was arrested charged, convicted and sentenced to serve life
imprisonment in an offence of defilement e/section 8(2) of the SOA NO.3
of 2006.
c. That I wish to appeal against both conviction and sentence premised on
my points of law that have overwhelming chances of success.
d. That I step before this seat of justice requesting to be allowed to appeal
out of time premised on my grounds in the notice of motion and others as
herein.
Decision
4. The Criminal Procedure Code under Section 349 provides as follows:
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, and shall
so admit an appeal if it is satisfied that the failure to enter the appeal
within that period has been caused by the inability of the appellant or
his advocate to obtain a copy of the judgment or order appealed against,
and a copy of the record, within a reasonable time of applying to the
Court therefor.
5. The Court do not condone delay in filing appeal as a matter of rights. The law
provides a window for filing belated appeals which requires a formal
application detailing sufficient cause for the delay. The Court looks at the
reasonableness of the cause rather than the length of the delay.
6. The key decided cases and principles on the approach of filing of an appeal
out of time as herein under demonstrates the liberal justice oriented approach
in exercising discretion to grant leave for an applicant to file his/her appeal
out of time. Thus:
Length of the Delay: While no maximum time is set, the delay must be
explained from the date of judgment to the date of filing 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.
7. 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 significance to
persuade the Court to extend 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 of time 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. Whether 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.”
8. Similarly, the Court in the case of Basawaraj and Another versus Special Land
Acquisition Officer (2013) 14 SCC 81, while rejecting an application for
condonation of delay for lack of sufficient cause has concluded in Paragraph
15 as follows:
“The law on the issue can be summarized to the effect that where a case
has been presented in the Court beyond limitation, the applicant has to
explain the Court as to what was the “sufficient cause” which means an
adequate and enough reason which prevented him to approach the Court
within limitation. In case a party is found to be negligent, or for want of
bona fide on his part in the facts and circumstances of the case, or found
to have not acted diligently or remained inactive, there cannot be a
justified ground to condone the delay. No Court could be justified in
condoning such an inordinate delay by imposing any condition
whatsoever. The application is to be decided only within the parameters
laid down by this Court in regard to the condonation of delay. In case
there was no sufficient cause to prevent a litigant to approach the Court
on time condoning the delay without any justification, putting any
condition whatsoever, amounts to passing an order in violation of the
statutory provisions and it tantamounts to showing utter disregard to the
legislature.”
9. In the instant application I do find a case in which the facts demonstrated the
Applicant was tried, convicted under the Sexual Offences Act contrary to
Section 8(1) as read with 8(2). He was later to be sentenced to life
imprisonment on 16th December 2025, however it appears from the affidavit
that he was not able to meet the deadline of 14 days to prefer an appeal to
the High Court. There is also evidence that he was not represented by an
Advocate before the Lower Court and he may have missed during conviction
and sentence, the important pronouncement directed on the limitation of time
of 14 days for him to file an appeal.
10. I have gone through the entire record I am of the considered view that the
Applicant has satisfied the criteria for this Court to grant leave to appeal out
of time. In this respect the Deputy Registrar of the High Court to repair the
typed record of the trial Court to be shared with the Applicant within 30 days
from today’s date. Thereafter the Applicant shall be at liberty to file his
memorandum of appeal simultaneously with the record of appeal. It is so
ordered.
DATED AND DELIVERED AT VIHIGA THIS 29TH DAY OF MAY 2026