https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1553

KImaiyo v Republic (Criminal Application E043 of 2024) [2026] KECA 1553 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1553 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Application E043 of 2024 MN Nduma, JA July 31, 2026 Between Jonathan Kipruto KImaiyo Applicant and Republic Respondent (Being an application for extension of time to file an Appeal out of time from the decision of High Court of Kenya at Kitale (H.K.Chemitei, J.) delivered on 21st February, 2017inHCCRA Case No. 49 of 2014) Ruling 1.Jonathan Kipruto Kimaiyo, the applicant herein was convicted for the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He was sentenced to death which was later commuted to life imprisonment. Dissatisfied with the trial court’s judgement, he intends to file an appeal to this Court out of time, hence the present application dated 4th June 2024 and supported by the applicant’s undated sworn affidavit. 2.The application came up for hearing on 9th July 2026 and was dispensed with by way of written submissions. 3.The applicant in his written submissions dated 8th July 2026, submits that the delay was not deliberate. He attributes it to circumstances beyond his control. The applicant admits that he is lay and therefore lacked the legal knowledge on procedures to ensure the appeal is filed in time. He submits that he assumed an appeal was filed on his behalf by Eldoret Main Prison, hence the delay. The applicant also avers that he has an arguable appeal which ought to be heard on its merits and therefore seeks leave to appeal out of time. 4.The application is opposed by counsel for the Respondents, Mr.Okaka, through written submissions dated 8th July 2026. Counsel Okaka submits that the application is incompetent for failure to; pray for an order for extension of time, indicate the date of delivery of impugned judgement and failure to file notice of appeal. In view of the foregoing, he prays for dismissal of the application. 5.Prior to delving into the factors to consider for grant of extension of time, I take note of the issue raised by the respondent on failure to explicitly pray for an order for extension of time. It is not contested that the applicant is lay and also unrepresented. It can therefore be inferred that he is not well acquainted with the technicalities of drawing pleadings to lodge an appeal. This is confirmed on the face of his Notice of Motion application which lacks an order phrased to seek for grant of extension of time. 6.While not explicitly prayed for, the applicant has alluded to seeking an order for extension of time in his written submissions dated 8th July 2026. A perusal of the introductory paragraph of his submissions, parameters argued in the body of his submissions and the consequential orders sought, specifically prayer number one (1), are in support of an order for grant of extension of time. The unintended omission by a lay litigant which is not prejudicial to the respondent is therefore excusable and ought to be viewed in the interest of substantive justice. 7.Having addressed that and in consideration of the parties’ pleadings and submissions, I now move to address the crux of this application. Whether the applicant is deserving of an order for extension of time? 8.Rule 4 of this Courts Rules bestow unfettered discretion to the Court to grant an order for extension of time. I am guided by the parameters for consideration set out in Cleophas Wasike v Mucha Swala [1984] KECA 55 (KLR) which include whether, the delay is inordinate; whether same has been adequately explained; whether the appeal is arguable and whether the respondent would suffer significant prejudice if the application is allowed. 9.The applicant admitted that out of ignorance, he assumed Eldoret Main Prison would lodge the appeal on his behalf and only learnt of his oversight in 2024 when he followed up with Naivasha Maximum Prison where he was incarcerated. 10.Following that realization, the applicant submits that he took steps to file the present application to lodge his appeal out of time. The applicant has in support of this contention, attached an undated Notice of Appeal of 2021 and undated Memorandum of Appeal. Both documents appear to have subsequently been filed. I therefore find that the applicant has advanced excusable reasons for the delay. 11.The applicant has set out grounds of appeal in the attached memorandum of appeal and states that same are arguable as highlighted in his submissions. I find that the appeal is deserving of hearing and determination on its merits. 12.Additionally, the Respondent does not stand to suffer any prejudice should the order for enlargement of time be issued to permit parties to agitate their case since the respondent will have opportunity to respond to the appeal and be heard by the Court. 13.In the circumstances, I am inclined to exercise my discretion in the applicant’s favour. I therefore, find that the application has merit and accordingly grant leave to file the appeal out of time within 30 days of this Ruling. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.NDUMA NDERIJUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR