https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1445

Kiplagat v Republic (Criminal Application E013 of 2026) [2026] KECA 1445 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 1445 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Application E013 of 2026 PM Gachoka, JA July 17, 2026 Between Silas Kiplagat 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 (R. Nyakundi, J.) delivered on 12th April 2019) in HCCRA No. 38 of 2023) 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. 38 of 2023. The applicant was charged in Eldoret Chief Magistrate (SO) Case No. E094 of 2023 with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. After a full trial he was convicted and sentenced to 30 years imprisonment. The applicant appealed before the Eldoret High Court. In his judgment delivered on 19th November 2024, R. Nyakundi, J. 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 not opposed to the application. Through Owiti Catherine Awuor, Prosecution Counsel, it filed written submissions dated 29th June 2026. It was submitted that the applicant's explanation was plausible, and that the delay was not inordinate. 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 and therefore, the Court is urged to take into account factors such as the length of delay, the reasons for the delay, the chances of the appeal succeeding and the degree of prejudice on any of the parties in determining whether to extend time. (See Leo Sila Mutiso v Helen Wangari Mwangi, Civil Application No. Nai 255 of 1997 [1999] 2 EA. 6.I have considered the reasons 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 waiting on his relatives to hire an advocate which never materialized due to financial constraints. I also note that the delay in filing the application is about one year and some months. The delay is inordinate, but in the circumstances of this application, where the applicant is in jail serving sentence, I am persuaded to temper justice with mercy. 7.I am therefore satisfied that the application has met the threshold for the exercise of discretion by this Court.Consequently, the applicant shall file his notice of appeal within 14 days from the date of this order. Under rule 64 of the Rules of this Court, the Deputy Registrar of the High Court is to prepare the Record of Appeal within 60 days of the filing of the Notice of Appeal. Therefore, a copy of this ruling shall be served on the Deputy Registrar, Eldoret High Court, upon filing of the Notice of Appeal for compliance. 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