Wesley Kimngetich & Another v Republic

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robbery with violence contrary to Section 296 (2) of the Penal Code. 2. The applicants were unable to file their appeal within the prescribed period of 14 days from the date of the decision. The present application was filed on 22 nd September 2026, approximately 2 years and 2 months after delivery of the impugned judgment. 3. The applicants attribute the delay to their incarceration and lack of knowledge of appellate procedures. They aver that they filed a notice of appeal at the Kilgoris High Court subregistry, intending it to be forwarded to the Court of Appeal at Nakuru, but the same was never transmitted. They further state that they sought legal advice from the Justice Office at Kisii Main Prison and were assisted by prison officers in filing the said notice. They contend that they are paupers with no legal representation and that their families are unable to assist them owing to financial constraints. 4. The respondent, through written submissions dated 30 th September 2026 and filed by Mr. A.J. Omutelema, Senior Assistant Director of Public Prosecutions, opposes the application. While the respondent Page 3 of 5 acknowledges the

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principles Page 4 of 5

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governing the exercise of discretion under Rule 4 as set out in Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 Others [2014] eKLR, it submits that the delay of over two (2) years is inordinate and that the explanation proffered is not satisfactory, particularly since the applicants have not attached a copy of the notice of appeal they claim to have filed. The respondent accordingly urges the Court to disallow the application. 5. The principles that guide this Court in the exercise of its discretion under Rule 4 are well settled. 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. 6. While the delay of approximately two (2) years and two (2) months is undoubtedly considerable, due regard must be had to the applicants’ prevailing circumstances. The applicants are serving custodial sentences and have explained that the delay arose from their limited knowledge of appellate procedures, coupled with the apparent failure by the High Court sub- registry to forward their notice of Page 5 of 5

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appeal to this Court. Their Page 6 of 5

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custodial status by its nature, may have probably constrained their access to legal materials, the Court record and professional legal assistance. Notwithstanding these challenges, the applicants have demonstrated that they made efforts to obtain legal guidance through the prison’s Justice Office and received assistance from prison officers. Accordingly, I am satisfied that the explanation tendered for the delay is plausible and reasonable. 7. The material before me also discloses that the intended appeal raises arguable issues and is therefore not frivolous. While adherence to prescribed timelines remains important, procedural requirements ought to facilitate, rather than impede, the attainment of substantive justice. This approach accords with the overriding objective embodied in Sections 3A and 3B of the Appellate Jurisdiction Act and the constitutional imperative under Article 159 (2) (d) of the Constitution. 8. I am persuaded that the applicants have demonstrated sufficient cause to justify the exercise of this Court’s discretion in their favour. The application is accordingly allowed. The applicants shall lodge their notice of appeal within fourteen Page 7 of 5

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(14) days from the date of this ruling and, upon lodging the same, file the record of appeal within sixty (60) days. Dated and delivered at Nakuru this 6th day of October, 2026. J. MATIVO .......................... . JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. DEPUTY REGISTRAR. Page 8 of 5

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