https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1229

Ngetich v Republic (Criminal Application E031 of 2026) [2026] KECA 1229 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KECA 1229 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Application E031 of 2026 JM Mativo, JA July 1, 2026 Between Hillary Kipngetich Ngetich Applicant and Republic Respondent (Being an application for leave to lodge an appeal out of time against the judgment of the High Court of Kenya at Kericho (H. A. Omondi, J.) dated 17th July 2014 in CRA No. 61 of 2012 Criminal Appeal 61 & 60 of 2012 ) Ruling 1.Hillary Kipngetich Ngetich (the applicant) by his application dated 13th May 2026 seeks leave to lodge his appeal out of time against the judgment and sentence delivered by Omondi, J (as she then was) in Kericho High Court Criminal Appeal No. 61 of 2012 on 17th day of July 2014. The application is premised on the grounds that the applicant was convicted of the offence of robbery with violence contrary to section 296 [2] of the Penal Code and sentenced to death. He is currently incarcerated and he is desirous of exercising his constitutional right of appeal but he was unable to file the appeal within the prescribed time due to circumstances beyond his control among them inability to obtain the court proceedings. He maintains that his intended appeal raises arguable points of law and fact with high chances of success and no prejudice will be occasioned to the respondent if the orders sought are granted. 2.The respondent filed written submissions dated 29th June 2026 conceding to the application. 3.Rule 4 of the Court of Appeal Rules gives this 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.” 4.The phrase "on such terms as are just" appearing in the above rule represents a statutory grant of wide, unfettered discretionary power to courts while allowing specific procedural reliefs. The discretion must be exercised on "just terms," meaning the applicant must show that the delay was not intentional or in bad faith. In this case, there is a delay of 12 years. The Supreme Court in Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR ruled that the law does not set out any minimum or maximum period of delay and that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons upon which discretion can be favourably exercisable. 5.I have considered the reasons offered by the applicant for the 12 years delay. Whereas courts consistently recognize that an incarcerated person faces systemic hurdles including restricted access to the trial records, and lack of legal representation constitute "good cause," this is not an automatic right. The court must consider the specific circumstances of the case, including whether the appeal is arguable. I note that the applicant is facing a death penalty and this may be his last appeal in our judicial hierarchy. Considering the nature of the case, the period of delay and the death sentence he is facing, it is my view that, this is a proper case for me to exercise my discretion in his favour. Accordingly, I allow the application and direct the applicant to file his notice of appeal (if not filed) 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. MATIVO................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR