1.The appellant/applicant’s notice of motion dated July 4, 2023 filed on July 4, 2023 seeks two orders; -
2.The grounds for the application as stated on its face and in the supporting affidavit sworn by Jane Wangui Kimani on even date are that:-
3.On July 31, 2023 this court directed counsel appearing for the parties to canvass the application through written submissions but by the time of writing this ruling none had been received.
4.In essence the appellant/applicant seeks to invoke the powers of this court under section 7 of the Appellate Jurisdiction Act which states: -
5.It is clear from the above section that whereas a person who has been convicted and sentenced is required to appeal within 14 days of the judgment and sentence (see section 349 of the Criminal Procedure Code) power is donated to the High Court to extend the time to do so and indeed it may do so even where time for giving the notice may have expired.
6.It is my finding therefore that this court is afforded an unfettered discretion to grant leave. However, the discretion must as always be exercised judicially and the leave is not to be granted as of right. There must be a plausible explanation for the delay for the application to succeed.
7.Whereas this is a criminal case I am guided by the decision of the Court of Appeal in the case of Mwangi v Kenya Airways Ltd  KLR 486 where the court stated:-........
9.In this case the judgement sought to be appealed was delivered n March 20, 2018 a period of five (5) years plus. The ground for this application is that the delay in filing the notice of appeal arose from the ineptitude of the applicants then advocate who failed to file the appeal and did not disclose that to the applicant until June 30, 2023.
10.I have given due consideration to the above ground and it is my finding that it is not plausible. In my view the applicant was as much responsible for seeing to it that the notice of appeal was filed in time as was her advocate. Moreover, she has not annexed anything to demonstrate that she indeed instructed her advocate to appeal. In this age and time when the courts have opened themselves up and even gone digital it would have been very easy for the applicant to confirm whether the appeal had been filed. The delay of five years is not only inordinate but also inexcusable. This application cannot be anything but an afterthought. I am fortified in so saying by the fact that even though counsel for the applicant was in court when directions were given to file submissions none were filed. While I appreciate that the applicant’s right to appeal under article 50(2) (c) of the Constitution is sacrosanct, I find that the unexplained inordinate and inexcusable delay prevents me from exercising my discretion in her favour.
11.In the premises the application for leave to file notice of appeal out of time is dismissed for lack of merit.