Gabriel Fredrick Kiboi v Republic

2. The applicant was charged in Nyahururu Chief Magistrate's Court Criminal Case No. E035 of 2019 with two counts: robbery with violence contrary to Section 296 (2) of the Penal Code in Count I, and rape contrary to Section 3(1) (a) (b) of the Sexual Offences Act in Count II, with an alternative count of committing an indecent act with an adult contrary to Section 11(a) of the Sexual Offences Act. He was convicted on the main counts and sentenced to death on Count I, and to ten (10) years imprisonment on Count II, the latter sentence being held in abeyance in view of the death sentence. His appeal to the High Court having been dismissed as aforesaid, the applicant now desires to mount a second appeal to this Court. 3. A person intending to appeal to this Court is required, by Rule 61 of this Court’s Rules to give notice in writing within 14 days of the date of the decision sought to be appealed. The applicant was therefore required to lodge his notice of appeal by 8th June 2023. The instant application was filed on 21st August 2026, approximately 3 years and 2 months after delivery of the impugned judgment. The applicant Page 2 of 4

page 2 of 7

attributes the delay to his belief that he had filed his appeal in a timely manner, only to discover that the same had not been heard and determined. Page 3 of 4

page 3 of 7

He contends that due to his earlier intention to appeal, he beseeches this Court to grant him leave to appeal out of time. 4. The respondent, through written submissions dated 30 th September 2026 and filed by Mr. A.J. Omutelema, Senior Assistant Director of Public Prosecutions, does not oppose the application. While the respondent observes that the delay of over 3 years is inordinate and that the explanation proffered is not satisfactory—particularly since the applicant has not attached proof of the alleged notice of appeal he claims to have filed—the respondent nevertheless concedes that, given the applicant was sentenced to death, the application for an extension of time to lodge a notice of appeal may be allowed. 5. The principles that guide this Court in the exercise of its discretion under Rule 4 are well settled. As was enunciated in Leo Sila Mutiso vs. Helen Wangari Mwangi [1999] 2 EA 231, and subsequently affirmed by the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others Page 4 of 4

page 4 of 7

[2014] eKLR, the Court must consider: the length of the delay; the reason for the delay; the chances of the appeal succeeding if the application is granted; and the degree of prejudice to the respondent if the application is granted. Page 5 of 4

page 5 of 7

6. In the instant matter, the delay of approximately 3 years and 2 months is inordinate. However, the applicant is incarcerated and has demonstrated that the delay in instituting the appeal arose from a genuine, albeit mistaken, belief that his appeal was already pending. His incarceration would, by its nature, have constrained his access to legal materials, the court record, and legal advice. In the circumstances, I consider the explanation advanced for the delay to be plausible, though not entirely satisfactory. 7. Accordingly, I allow the application and order that the applicant shall file his notice of appeal within fourteen 14 days from the date of this ruling, and shall thereafter file the record of appeal within forty five (45) days from the date of lodging the notice of appeal. Dated and delivered at Nakuru this 5th day of October, 2026. J. MATIVO .......................... . JUDGE OF APPEAL I certify that this is a true copy of the original. Page 6 of 4

page 6 of 7

Signed. DEPUTY REGISTRAR. Page 7 of 4

page 7 of 7