https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1224

Ng'etich v Republic (Criminal Application E032 of 2026) [2026] KECA 1224 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KECA 1224 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Application E032 of 2026 JM Mativo, JA July 1, 2026 Between Collins Kipngeno Ng'etich Applicant and Republic Respondent (Being an application for leave to be granted to file and serve a notice of appeal out of time against the judgment of the High Court of Kenya at Nakuru (P. Gichohi, J.) dated 24th October 2024inCRA No. E055 of 2022) Ruling 1.By a Judgment delivered on 24th October 2024 in Nakuru High Court Criminal Appeal No. E055 of 2022, Gichohi, J dismissed the applicant’s appeal against both conviction and sentence of 20 years for the offence of defilement contrary to Section 8 (1) (3) of the Sexual Offences Act. Though aggrieved, the applicant did not file a notice of appeal or an appeal within the time prescribed by the law. 2.By an application dated 11th May 2026, the subject of this ruling, the applicant seeks two substantive orders: (a) leave to file and serve a notice of appeal out of time against the Judgment of the High Court of Kenya at Nakuru delivered on 24th October 2024 in Criminal Appeal No. E055 of 2022; (b) the notice of appeal annexed hereto be deemed as duly filed upon payment of the requisite Court fees. 3.The grounds in support of the application are that:(a)the intended appeal raises substantial and arguable points of law;(b)the applicant lodged a notice of appeal through the prison authorities at Naivasha, which is the only mechanism available to him;(c)despite the said effort, no appeal has been processed, no appeal number issued and no hearing date allocated for a period of approximately one and a half years;(d)the delay in filing the notice of appeal within time was not deliberate but arose from circumstances beyond the applicant's control, including reliance on prison administrative systems;(e)the applicant has since been advised by prison paralegals that he is required to seek leave to file the notice of appeal out of time;(f)upon obtaining pro bono legal representation, he has moved without delay and filed the present application;(g)the intended appeal raises serious constitutional and legal questions, including violation of his non-derogable right to a fair trial under Article 50 of the Constitution;(h)it is in the interests of justice that he be afforded an opportunity to ventilate his appeal on merit, and,(i)the respondent will suffer no prejudice. 4.In support of the application, the applicant filed written submissions dated 8th June 2026 essentially maintaining that he has satisfactorily explained the delay, that he has an arguable appeal and that the respondent will not be prejudiced should the orders sought be granted. 5.As at the time of writing this ruling, that is, 1st July 2026 at 9:15 am, the respondent had not filed submissions on this file. 6.Rule 4 of the Court of Appeal Rules gives the Court unfettered discretion to“… 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 …, on such terms as it thinks just.” 7.Under the above rule, the word "just" acts as the foundational boundary for the courts otherwise unfettered judicial discretion to grant or deny an extension of time. The rule provides that the Court may extend the time limited by the rules "on such terms as it thinks just". In judicial interpretation, the word "just" means that the discretion must be exercised logically, fairly, and judicially, not arbitrarily, whimsically, or based on private sentiments. 8.I have considered the reasons for the delay advanced by the applicant as set out in the motion and the supporting affidavit. The applicant’s main reason is that he is in prison and that he forwarded his notice of appeal for filing in Court through the prison authorities, but to date, there is nothing to suggest that it was filed. Undeniably, being in prison and experiencing lack of access to trial court records or legal aid is universally recognized as a "sufficient cause" to condone delay. The Supreme Court of India in State of Haryana vs. Chandra Mani AIR 1996 SC 1623, a landmark judgment that covers condonation general principles broadly, explicitly established the standard for condoning delays emphasizing that since an incarcerated person cannot freely move to obtain certified copies of trial records or engage a lawyer, his/her delay cannot be categorized as "deliberate inaction" or negligence. The Court was categorical that any bureaucratic delay by prison staff or the paralegals in fetching the trial records or drafting the petition automatically constitutes a valid ground for condonation of delay. When substantial justice is pitted against technical considerations of delay, courts must lean towards deciding the matter on the merits. 9.Accordingly, I am satisfied that this is a proper case for me to exercise my discretion in favour of the applicant. Accordingly, I allow the applicant’s application dated 11th May 2026 and direct the applicant to file his notice of appeal within 14 days from today and the record of appeal within 45 days from today. DATED AND DELIVERED AT NAKURU THIS 1ST DAY OF JULY, 2026.J. MATIVOJUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR.