Onginjo v Republic (Criminal Application E115 of 2024) [2025] KECA 2326 (KLR) (19 December 2025) (Ruling)

Onginjo v Republic (Criminal Application E115 of 2024) [2025] KECA 2326 (KLR) (19 December 2025) (Ruling) Neutral citation: [2025] KECA 2326 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Application E115 of 2024 HA Omondi, JA December 19, 2025 Between William Omondi Onginjo Applicant and Republic Respondent (Being an application for leave to file appeal out of time against the conviction and sentence (Aburili, J.) dated 21st October 2022) Ruling 1.The applicant was convicted in the Magistrate’s Court at Bondo, on a charge of defilement contrary to section 8(1) as read with section 8(3) of the [Sexual Offences Act](/akn/ke/act/2006/3), and sentenced to serve 15 years imprisonment on 8th February 2022. According to his application, he appealed to the High Court at Siaya in HC. Misc. Application No. E137 of 2022, but the appeal was dismissed on 21st October 2022. 2.The applicant ought to have filed his appeal within 14 days of the last decision made, but he failed to do so. Dissatisfied by that outcome, the applicant notheless wishes to appeal to this Court, but realises that the time within which to file appeal has lapsed, so he has now filed the Notice of Motion dated 3rd day of July 2024 seeking leave to file, and serve the Notice of Appeal out of time. He explains that the delay was occasioned by the fact that he was relying on his family members to secure for him the services of an advocate to pursue his appeal, but only realized too late that due to financial constraints, that was not going to happen. 3.There was no response to this application. 4.This Court is allowed to exercise its unfettered discretion as provided under rule 4 of the [Court of Appeal Rules](/akn/ke/act/ln/2022/40/eng@2022-12-31) which provides as follows:The court may, on such terms as it thinks just, by order extend the time limited by these [Rules](/akn/ke/act/ln/2022/40/eng@2022-12-31), or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these [Rules](/akn/ke/act/ln/2022/40/eng@2022-12-31), whether before or after the doing of the act, and a reference in these [Rules](/akn/ke/act/ln/2022/40/eng@2022-12-31) to any such time shall be construed as a reference to that time as extended. 5.Rule 4 of the [Court of Appeal Rules](/akn/ke/act/ln/2022/40/eng@2022-12-31) 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: 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.” 6.Unfortunately, in the instant matter, the applicant is so economical with information, that it becomes impossible for this court to make a rational decision. He refers to an application made before the High Court, he does not disclose the name of the Judge who handled it. If it was an application, then was it preceded by an appeal? No copy of the order intended to be contested, is attached to enable this court even understand the state of affairs that existed; and which hampered his pursuit of the appeal. I get the distinct impression that this is a mischievous application by an individual who has probably pursued his appeal separately; and is out to try his luck. The upshot is that there is nothing upon which to favourably exercise discretion, and the application is dismissed as being unmerited. **DATED AND DELIVERED AT KISUMU THIS 19 TH DAY OF DECEMBER, 2025. ****H. A. OMONDI****......................................****JUDGE OF APPEAL** I certify that this is a true copy of the original.**DEPUTY REGISTRAR** *[HC. Misc.]: High Court Miscellaneous *[EA]: East Africa Law Reports