https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1451

Njomo v Republic (Criminal Application E009 of 2026) [2026] KECA 1451 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 1451 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Application E009 of 2026 PM Gachoka, JA July 17, 2026 Between Josephat Kibet Njomo Applicant and Republic Respondent (An application for leave to appeal out of time against the conviction and sentence of the High Court of Kenya at Eldoret (Omondi, J.) delivered on 12th April 2019 in HCCRA No. 75 of 2008) Ruling 1.In his undated Chamber Summons, the applicant seeks leave of this Court to appeal out of time from the conviction and sentence upheld by the Eldoret High Court in HCCRA No. 75 of 2008. The applicant was charged in Eldoret PM (SO) Case No. 3086 of 2008 with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The trial court convicted him as charged on his own plea of guilty and sentenced him to life imprisonment. The appellant appealed before the Eldoret High Court. In her judgment dated 12th April 2019, Omondi, J. (as she then was) dismissed his appeal on both conviction and sentence. 2.The applicant is aggrieved by those findings. In support of his application, the applicant annexed his undated sworn affidavit. He urged this Court to allow his application. The applicant did not annex a memorandum of appeal but in this affidavit, he attributes the delay to his reliance on his relatives who promised to hire a lawyer for him but could not do so due to financial constraints. 3.The applicant filed undated submissions where he urged the Court to allow the application as he had satisfactorily explained the delay, demonstrated that the appeal was arguable and that the respondent would suffer no prejudice if the application was allowed. 4.The respondent is opposed to the application. Through Kisui Grace Wavinya, Prosecution Counsel, it filed written submissions dated 29th June 2026. It was submitted that the applicant's explanation was implausible and that the delay was inordinate, she urged the Court to dismiss the application. 5.The discretion set out in rule 4 of the Court of Appeal Rules, 2022 is wide and discretionary. The guiding principles are not exhaustive. However, the Court is urged to take into account the length of delay involved, the reasons for delay, possible prejudice on any party, the conduct of the parties, the need to balance competing interests, the need to protect a party’s opportunity to fully litigate his or her dispute and the chances of succeeding. (See Henry Mukora Mwangi vs. Charles Gichina Mwangi, Civil Application No. Nai. 26 of 2004.) 6.I have considered the reason advanced by the applicant, and the applicant’s written submissions, the respondents’ written submissions, and the law. The applicant states that he was unable to comply with the timelines as he was serving his sentence and as such, the delay was occasioned by circumstances beyond his control. I note that the delay in filing the application is about 7 years. 7.Taking judicial notice that the applicant is currently serving a life sentence, and being alive to the difficulties that this brings, I note that many inmates do pursue their appeals, and the law does not exempt a prisoner from the basic obligation of demonstrating diligence in pursuing his appeal. The applicant could have written to the court registry, petitioned the Officer in Charge of his prison for assistance, or sought help from a legal aid organisation. He has not demonstrated that any of these avenues were attempted. In my view, the explanation given by the applicant is implausible. 8.Accordingly, the application is dismissed. DATED AND DELIVERED AT ELDORET THIS 17TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb...............................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR