Khamete v Republic (Criminal Application E001 of 2025) [2025] KECA 1769 (KLR) (24 October 2025) (Ruling)

Khamete v Republic (Criminal Application E001 of 2025) [2025] KECA 1769 (KLR) (24 October 2025) (Ruling) Neutral citation: [2025] KECA 1769 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CRIMINAL APPLICATION E001 OF 2025 HA OMONDI, JA OCTOBER 24, 2025 BETWEEN JOSEPH AMATABI KHAMETE ............................................................. APPLICANT AND REPUBLIC ............................................................................................  RESPONDENT (Being an application seeking to appeal against both conviction and sentence against the Judgment of the High Court of Kenya at Kisumu (J. Kamau, J.) dated 31st March 2022 in HCCRA No. 72 of 2019) RULING 1. Joseph Amatabi Khamete was charged with the oence of Delement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act No. 3 of 2006 in Criminal Case No. SO 536 of 2016 at Winam SRM's Court and sentenced to Life imprisonment. He appealed to the High court vide High court criminal Appeal No. 72 of 2019, where his appeal was dismissed. He however failed to le his appeal, much as he was aggrieved by the outcome. 2. He explains that the delay in ling his appeal was as a result of not being supplied with the record of appeal on time; which has now prompted him to le a notice of motion dated 2nd January 2025, supported by his adavit of even date, seeking leave to be allowed to le his appeal out of time. He states that the appeal has high chances of succeeding; and the respondent will suer no prejudice should the application be allowed. 3. There is no response led by the respondent either by way of adavit or submissions. 4. I have considered the application, the grounds in support thereof, submissions led and bearing in mind that in an application of this nature, the court is allowed to exercise its discretion. The issue for determination is whether the applicant is deserving of the orders sought. The discretion that I am called https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1769/eng@2025-10-24 1 to exercise in the determination of this application is unfettered and is provided under rule 4 of the Court of Appeal Rules which provides as follows: The court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act,and a reference in these Rules to any such time shall be construed as a reference to that time as extended. Rule 4 of the Court of Appeal Rules does not provide for factors the Court ought to consider in an application for extension of time but courts have devised appropriate principles to be applied in achieving a ‘just’ decision in the circumstances of each case. The case of Leo Sila Mutiso vs. Hellen Wangari Mwangi [1999] 2 EA 231 which is the locus classicus, laid down the parameters as follows: “ 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: rst 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.” 5. In Muringa Company Ltd vs. Archdiocese of Nairobi Registered Trustees, Civil Application No.190 of 2019 observed that: “ Some of the considerations, which are by no means exhaustive, in an application for extension of time include the length of the delay involved, the reason or reasons for the delay, the possible prejudice, if any, that each party stands to suer, the conduct of the parties, the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal, the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure timely resolution of disputes; the public interest issues implicated in the appeal or intended appeal; and whether, prima facie, the intended appeal has chances of success or is a mere frivolity.” 6. How long was the delay in this instance? 4 years (four). What was the reason? The applicant is a lay person incarcerated; and did not have the advantage of easily reaching the courts to push for his record of appeal. There is no maximum or minimum period of delay set out under the law, however, the reason or reasons for the delay must be reasonable and plausible. For instance, in Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, this Court stated: “ 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.” 7. Under Rule 61 (1): A person who desires to appeal to the Court shall give Notice of appeal in writing, which shall be lodged in six copies with the registrar of the superior Court at the place where the https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1769/eng@2025-10-24 2 decision against which it is desired to appeal was given, within fourteen days after the date of that decision, and the notice of appeal shall institute the appeal. Undoubtedly the notice of appeal ought to have been lodged within 14 days of the delivery of the decision which it seeks to appeal; that did not happen; nor has the applicant led and served his record of appeal. I am satised that the reasons already alluded to posed a challenge to the applicant to act in a timely manner; and the sentence the applicant is challenging is a long one which if his prayer is denied will occasion him great prejudice. 8. The upshot is that the application is merited and is allowed. The applicant is granted extension of time to le and serve the notice of appeal out of time within fourteen (14) days of today’s date. The applicant shall le and serve the respondent with the record of appeal within thirty (30) days upon service of the Notice of Appeal. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF OCTOBER, 2025. H. A. OMONDI …………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1769/eng@2025-10-24 3