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Court of AppealAllowedCriminal Application No. NAK E074 of 2026· [2026] KECA 2095 (KLR)

Gabriel Fredrick Kiboi v Republic

Court of Appeal
5 October 2026
JMJ. Mativo
777 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a death-row inmate three years late to appeal another chance, because prison made filing properly difficult.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Nakuru by Mativo, JA, on an application dated 21st August 2026 under Rule 4 of the Court of Appeal Rules, 2022, seeking enlargement of time to file a notice of appeal. The intended appeal is a second appeal against the judgment of the High Court at Nyahururu (Kariuki, J.) dated 25th May 2023, which dismissed the applicant's first appeal and affirmed his conviction on counts of robbery with violence and rape, with a death sentence on Count I and a ten-year sentence on Count II held in abeyance. The notice of appeal was due by 8th June 2023 under Rule 61; the application was filed approximately 3 years and 2 months late. The applicant attributed the delay to a genuine but mistaken belief that his appeal had already been filed and was pending. The respondent, through Mr. A.J. Omutelema, did not oppose the application, conceding that although the delay was inordinate and the explanation unsatisfactory, the death sentence justified allowing the extension. Applying the settled Rule 4 principles from Leo Sila Mutiso v Helen Wangari Mwangi, as affirmed by the Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC, the court held the delay inordinate but the explanation plausible given the applicant's incarceration and constrained access to legal materials. The application was allowed, with 14 days to file the notice of appeal and 45 days thereafter to file the record of appeal. No costs order was made.

Key legal issues

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01

Whether inordinate delay of approximately 3 years and 2 months could be excused under Rule 4

Holding

Yes; despite inordinate delay, the applicant's incarceration and genuine mistaken belief that his appeal was pending rendered the explanation plausible enough to warrant extension.

Reasoning

The court accepted the delay was inordinate but weighed it against the applicant's incarceration, which constrained access to legal materials, the court record and legal advice. The mistaken belief that the appeal was already pending was treated as a genuine reason. The respondent did not oppose the application, and the death sentence weighed in favour of allowing the extension.

p. 6

Legal principles established

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  • In exercising discretion under Rule 4, the court considers the length of the delay, the reason for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent.

Court orders

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  1. 1.The application for extension of time is allowed
  2. 2.The applicant shall file his notice of appeal within fourteen (14) days from the date of the ruling
  3. 3.The applicant shall file the record of appeal within forty-five (45) days from the date of lodging the notice of appeal
On appeal from
High Court of Kenya at Nyahururu
CRA No. E017 of 2023 (also referred to as High Court Criminal Appeal No. E017 of 2021)
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gabriel Fredrick Kiboi v Republic", Case Analysis (2026). Criminal Application No. NAK E074 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2095/eng@2026-10-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.