Achuki v Republic (Criminal Application E003 of 2026) [2026] KECA 766 (KLR) (24 April 2026) (Ruling)

Achuki v Republic (Criminal Application E003 of 2026) [2026] KECA 766 (KLR) (24 April 2026) (Ruling) Neutral citation: [2026] KECA 766 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CRIMINAL APPLICATION E003 OF 2026 LM NJUGUNA, JA APRIL 24, 2026 BETWEEN JOHNSTONE NYABEGA ACHUKI ......................................................  APPLICANT AND REPUBLIC ............................................................................................  RESPONDENT (An application for extension of time to lodge an appeal from the judgment of the High Court of Kenya at Nairobi (Mutende, J.) dated 12th July 2022 in HCCRA No. E001 of 2021) RULING 1. The application before me is dated 8th January 2026. The main prayer is for leave to appeal out of time against the judgment issued in HCCRA No. E001 of 2021. 2. The applicant, Johnstone Nyabega Achuki, was rst arraigned before the Chief Magistrates’ Court in Criminal Case No. 1541 of 2014 at Makadara and charged with the oence of rape contrary to section 3 (1) (a) as read with section 3(3) of the Sexual Offences Act and an alternative charge of grievous harm contrary to section 234 of the Penal Code. He was convicted on both counts and sentenced to serve thirty (30) years' imprisonment on both counts on 3rd December 2020. 3. Dissatised with the judgment of the court, the applicant appealed to the High Court in Criminal Case No. E001 of 2021 in Nairobi, and upon hearing his appeal, the High Court set aside the sentence meted out on count I of rape and substituted it with twenty (20) years imprisonment. For count II on the oence of grievous harm, the High Court substituted the sentence meted out with a sentence of ve (5) years imprisonment on 12th July 2022. 4. Dissatised, the applicant appealed against the High Court’s decision to this Court. Although aggrieved, he failed to lodge his notice of appeal within the statutory-stipulated time of 14 days. The https://new.kenyalaw.org/akn/ke/judgment/keca/2026/766/eng@2026-04-24 1 applicant contends that he was unable to appeal on time because he was unable to raise the requisite court fees for the preparation of his record of appeal due to his incarceration. 5. His present application invokes rule 4 of the Court of Appeal Rules to enlarge the time to le his appeal. 6. The respondent has not complied with the direction issued by the Deputy Registrar on 13th April 2026. Therefore, the application is not opposed. 7. I have considered the application and the supporting adavit. There has been a delay of approximately 3 years and 6 months in ling this appeal against the judgment of the High Court. The principles that guide the Court in applications for extension of time are well settled. The Supreme Court of Kenya pronounced itself on the question of extension of time in the case of Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR, and stated as follows: “ The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s ow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 8. Additionally, in Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) the Supreme Court of Kenya determined: that extension of time is not a right of a party but an equitable remedy available to a deserving party at the discretion of the court; that the party seeking extension of time has the burden to lay a basis to the satisfaction of the court; that extension of time is a consideration on a case to case basis; and that delay should be explained to the satisfaction of the court. Other factors include whether there will be prejudice suered by the respondents if the extension is granted; whether the application is brought without undue delay; and public interest. 9. In eect, although the court has unfettered discretion under rule 4 of the Court of Appeal Rules, that discretion should be exercised judicially, and each case must be considered on its own facts. 10. I have perused the memorandum of appeal dated 8th January 2026. The grounds of appeal raised are arguable. The reason for the delay in ling the appeal is plausible, and no prejudice would be occasioned to the respondent if this application is granted. I therefore grant leave to appeal out of time as sought. The notice of appeal dated 8th January 2026 is deemed as having been led in time. DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF APRIL, 2026. L. NJUGUNA .............................. JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/766/eng@2026-04-24 2