NKL v Republic (Criminal Application E087 of 2025) [2025] KECA 1986 (KLR) (19 November 2025) (Ruling) Neutral citation: [2025] KECA 1986 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU CRIMINAL APPLICATION E087 OF 2025 PM GACHOKA, JA NOVEMBER 19, 2025 BETWEEN NKL ............................................................................................................ APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (An application for leave to appeal out of time against the conviction and sentence by the High Court of Kenya at Bomet (Ng’arng’ar, J.) delivered on 18th September 2025 in HCCRA No. E002 of 2023) RULING 1. The present application dated 17th October 2025 seeks leave of this Court to appeal out of time from the conviction and sentence upheld by the Bomet High Court in HCCRA No. E002 of 2023 (Ng’ang’ar J). The applicant was in Bomet CMC Criminal Case (SO) No. E029 of 2022 charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. He was found guilty of the offence and sentenced to life imprisonment. The applicant appealed against those findings. Ng’arng’ar J. dismissed his appeal on conviction and sentence. 2. The applicant wants to appeal against those findings hence the present application. It is supported by his affidavit sworn on 17th October 2025. He urged this Court to allow his application for the following reasons justifying that it was not deliberate or intentional: he did not have legal representation; he was supplied with the judgment late; his appeal raised weighty and constitutional issues; the respondent stood to suffer no prejudice; and the applicant stood prejudiced if the orders sought are denied as he would be driven away from the seat of justice, a deviation from Article 50 (2) (q) of the Constitution. 3. The application was heard on the basis of the parties’ written submissions. The applicant filed undated written submissions. He reiterated the contents of his application urging this Court to invoke Articles 48, 50 (2) (q), 159 (2) (d) and 259 (1) of the Constitution in allowing his application. In the respondent’s https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1986/eng@2025-11-19 1
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written submissions dated 10th November 2025, Senior Assistant Director of Public Prosecutions Mr. Omutelema, acting for the state, did not oppose the application. He urged this Court to take into account the fact that the sentence meted out against the applicant is lengthy and the application was filed timeously. 4. Rule 4 of the Court of Appeal Rules 2022 gives this Court discretionary powers to extend time. This Court in Karny Zahrya & another vs. Shalom Levi [2018] eKLR stated the following as issues to be considered in an application under rule 4 of this Court’s Rules: “ Some of the considerations to be borne in mind while dealing with an application for extension of time include the length of the delay involved, the reason(s) for the delay, the possible prejudice, if any, that each party stands to suffer depending on how the court exercises its discretion; the conduct of the parties; the need to balance the interests of a party who has a decision in his or her favour against the interest of a party who has a constitutionally underpinned right of appeal; the need to protect a party’s opportunity to fully agitate its dispute, against the need to ensure timely resolution of disputes; the public interest issues implicated in the appeal or intended appeal; and whether, prima facie, the intended appeal has chances of success or is a mere frivolity. In taking into account the last consideration, it must be born in mind that it is not the role of a single judge to determine definitively the merits of the intended appeal. That is for the full Court if and when it is ultimately presented with the appeal” 5. I have considered the reasons supporting the application, the respondent’s concession to the application and the law. I am satisfied to hold that the application has met the threshold for the exercise of discretion by this Court. Further, the application was not filed with delay as it was lodged under a month after the impugned judgment was delivered. Accordingly, the applicant shall file his notice of appeal within 14 days from the date of this order. Thereafter, the record of appeal shall be filed and served within 30 days. DATED AND DELIVERED AT NAKURU THIS 19TH DAY OF NOVEMBER 2025. M. GACHOKA C.Arb, FCIArb. ...................................... JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1986/eng@2025-11-19 2
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