Khaluma v Republic (Criminal Application E012 of 2026) [2026] KECA 1462 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 1462 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT ELDORET CRIMINAL APPLICATION E012 OF 2026 PM GACHOKA, JA JULY 17, 2026 BETWEEN PETER USHURU KHALUMA ............................................................... 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 5th November 2024) in HCCRC No. 02 of 2024) RULING 1. In his undated Chamber Summons, the applicant seeks leave of this Court to appeal out of time from the conviction and sentence in Eldoret High Court in HCCRC No. 02 of 2024. The applicant was charged with the ofience of murder contrary to section 203 as read with section 204 of the Penal Code. In his judgment delivered on 5th November 2024, R. Nyakundi, J. convicted him as charged and sentenced him to 35 years’ imprisonment. 2. The applicant is aggrieved by those findings. In support of his application, the applicant annexed his undated sworn affidavit in support of the application, urging the Court to allow the said 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 did not file submissions to the application. 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. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1462/eng@2026-07-17 1
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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. However, the Court is urged to take into account the length of delay involved, the reasons for delay, possible prejudice on any party, the conduct of the parties, the need to balance competing interests, the need to protect a party’s opportunity to fully litigate his or her dispute and the chances of succeeding. (See Thuita Mwangi v Kenya Airways Ltd [2003] KECA 201 (KLR). 6. I have considered the reasons advanced by the applicant, the respondents’ written submissions, and the law. The applicant states that he was unable to comply with the timelines as he was waiting for 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 case, 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 APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1462/eng@2026-07-17 2
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