Githaiga v Republic (Criminal Application E044 of 2026) [2026] KECA 1994 (KLR) (30 September 2026) (Ruling) Neutral citation: [2026] KECA 1994 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU CRIMINAL APPLICATION E044 OF 2026 JM MATIVO, JA SEPTEMBER 30, 2026 BETWEEN JOHN MWANGI GITHAIGA ................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an application against the conviction and sentence from the judgment of the High Court of Kenya at Nakuru (J. Nangea, J.) dated 8th December 2025 in Criminal Case No. E031 of 2020) RULING 1. John Mwangi Githaiga (the applicant), has led the instant notice of motion dated 15th June 2026 seeking an extension of time to le a notice of appeal out of time under Rule 4 of the Court of Appeal Rules, 2022. He seeks to challenge the judgment delivered on 8th December 2025 by the High Court at Nakuru (Nangea, J.) convicting him of the oence of murder contrary to Section 203 as read with Section 204 of the Penal Code and sentencing him to thirty (30) years imprisonment. 2. Rule 61 (1) of this Court's Rules, 2022 provides that: “ (1) 3. A person who desires to appeal to the Court shall give notice in writing, which shall be lodged in six copies with the Registrar of the Superior Court at the place where the decision against which it is desired to appeal was given, within fourteen days after the date of that decision, and the notice of appeal shall institute the appeal.” Consequently, the Applicant should have led his notice of appeal by 22nd December 2025 if he intended to appeal. The current application was led on 15th June 2026, approximately ve (5) months after the judgment was delivered. The sole reason for the delay as stated on the face of the application and in the supporting adavit is that the applicant's family had promised to instruct an advocate to https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1994/eng@2026-09-30 1
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le an appeal on his behalf, and it was only recently that he discovered that no such appeal had ever been led. He also attributes the delay to his incarceration and the attendant limitations in accessing legal materials, the court le and legal advice. 4. The respondent, through written submissions dated 27th August 2026, maintained that it did not oppose the application, given that the sentence meted out was lengthy and this was the applicant's rst appeal. 5. Rule 4 of the Court of Appeal Rules, 2022 vests this Court with a wide discretion to enlarge the time prescribed by the Rules, or by any decision of the Court or of a Superior Court, for the performance of any act permitted or required thereunder. The discretion may be exercised upon such terms as the Court may deem just. (See Nicholas Kiptoo Arap Koriri vs. IEBC and 7 ____ Others [2015] eKLR). 6. I have duly considered the reasons proered by the applicant. Even though the application is unopposed, the applicant is nonetheless required to satisfy the established principles governing the exercise of the Court’s discretion. (See Nicholas Kiptoo Arap Korir Salat vs. IEBC and 7 Others [2015] eKLR) (supra). The overarching criterion for granting leave to appeal out of time is whether it is in the interests of justice to do so. The Court conducts a balanced evaluation of several specic factors. However, the "interests of justice" is not a freestanding excuse to overlook deadlines, but rather a legal framework for a balancing exercise. The interests of justice mandate that the Court weighs multiple factors against one another rather than focusing on a single issue. 7. The Court will not look at the applicant’s delay in isolation. Under the banner of the interests of justice, the Court performs a holistic evaluation of the length of the delay, the reasonableness of the explanation, the prospects of success, and the prejudice to both the State and the applicant. 8. In criminal matters, the interests of justice are heavily weighted by constitutional considerations, specically, the right to a fair trial and the right not to be deprived of freedom arbitrarily. If a strict application of procedural deadlines would result in an obviously innocent person remaining in prison, the interests of justice will heavily favour granting the extension. 9. Conversely, the interests of justice also demand that criminal matters reach nality. The State and the public have an interest in knowing that a criminal judgment is settled. Therefore, a completely unexplained or agrant delay will conict with the interests of justice, prompting the Court to deny the extension. In the interests of justice, strong prospects of success can compensate for a poor explanation for delay, and conversely, a minor delay can be forgiven even if the merits are modest. The "interests of justice" ensures that the rules of Court remain exible instruments to achieve true substantial justice, rather than rigid technical hurdles that create unfair outcomes. 10. I have looked at the reasons oered for the delay, the period of delay and weighed the interests of justice as discussed above. I am persuaded that this is a proper case for this Court to exercise its discretion in favour of the applicant. Consequently, the application dated 15th June 2026 is hereby allowed. The applicant shall lodge the notice of appeal within fourteen (14) days from the date hereof and shall thereafter le the record of appeal within forty-ve (45) days. DATED AND DELIVERED AT NAKURU THIS 30TH DAY OF SEPTEMBER, 2026. J. MATIVO ........................... https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1994/eng@2026-09-30 2
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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/2026/1994/eng@2026-09-30 3
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