Ngeresa v Republic (Criminal Application E062 of 2024) [2026] KECA 1998 (KLR) (28 September 2026) (Ruling) Neutral citation: [2026] KECA 1998 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU CRIMINAL APPLICATION E062 OF 2024 MS ASIKE-MAKHANDIA, JA SEPTEMBER 28, 2026 BETWEEN BONFACE NGERESA .............................................................................. APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an application for leave to appeal out of time against the judgment of High court of Kenya at Kisii, (Ndungu J.) in HCCR No. NO. E021 of 2022) RULING 1. The application before me is the Notice of Motion dated 5th June, 2024, expressed to be brought under Rules 113(1)(a) and (b), 113(2) and 113(5) of the Court of Appeal Rules, 2010. Through the application, the applicant, Bonface Ngeresa, seeks in the main, leave to appeal out of time. Directions were given by the Deputy Registrar of this Court that the application be heard by way of written submissions only and without appearance of the parties. The record shows that though the respondent was duly served with both the application and directions, no replying adavit, grounds of opposition or any other response was led. Nor did it le written submissions. The application as it is, therefore remains unopposed. 2. The applicant's case premised on the grounds appearing on the face of the application and by his own supporting adavit, is that, he was convicted of the oence of manslaughter contrary to section 202 as read with section 205 of the Penal Code and sentenced to twenty- ve (25) years imprisonment. He wishes to challenge the conviction and sentence but the time for doing so under the rules of this Court have long expired thereby necessitating this application. He attributes the delay in progressing his appeal in time due to his incarceration, nancial constraints and inability to secure legal representation. 3. At the outset, I must observe that the application is largely skeletal and has presented the Court with some diculty in discerning the precise legal and factual basis upon which the reliefs sought are https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1998/eng@2026-09-28 1
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anchored. While the applicant invokes Rules 113(1)(a) and (b), 113(2) and 113(5) of the Court of Appeal Rules and seeks leave to appeal out of time, the application contains scant material in support thereof and provides little explanation regarding the circumstances necessitating the orders sought. Further, some parts of the motion are incomplete and times indecipherable. Nevertheless, the Court is able to discern from the application and supporting adavit that the applicant seeks leave to challenge the judgment of the High Court. I shall therefore determine the application on that basis. 4. The law regarding extension of time is settled. Rule 4 of the Court of Appeal Rules provides that: “ The Court may, on such terms as it thinks just, by order, extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules." 5. The principles were rehashed in PMW v Republic [2003] KLR 486 where the Court stated thus: “ Over the years, the Court has set out guidelines on what a single judge should consider when dealing with an application for extension of time under Rule 4. For instance, in Leo Sila Mutiso v Rose Hellen Wangari Mwangi, (Civil Application No. Nai. 255 of 1997, the Court expressed itself thus: It is now well settled that the decision whether to extend the time is essentially discretionary. It is also well settled that in general, the matters which this Court takes into account in deciding whether to grant an extension of time are; rst, the length of the delay; secondly, the reason for the delay; thirdly (possibly), the chances of appeal succeeding if the application is granted; and fourthly, the degree of prejudice to the respondent if the application is granted.” 6. The rst issue for consideration is the length of delay. The judgment sought to be impugned was delivered on 29th July, 2022, while the present application was lodged on 5th June, 2024. There is therefore a delay of approximately one year and ten months which is certainly inordinate . 7. As regards the reason for the delay, the applicant attributes the same to incarceration, lack of funds and inability to obtain legal assistance. He also claims to be indigent. In the absence of contra averments by the respondent, I would take them to be plausible. 8. On the arguability of the intended appeal, I note that the applicant has asserted that his intended appeal is arguable with particular reference to the evaluation of evidence of identication by the two courts below, burden of proof in criminal cases and violation of the applicant’s constitutional rights to fair trial. I do not think that these are frivolous grounds. 9. Regarding prejudice, it requires no gainsaying, given that the applicant is facing a long period of incarceration and his undoubted constitutional right to exhaust the appellate process. On the other hand, there is no demonstrable prejudice that the respondent may suer should the application be allowed. 10. Ultimately, I am satised that the applicant has laid a sucient basis for the exercise of this Court's discretion in his favour under Rule 4 of the Court of Appeal Rules. Consequently, the applicant is granted thirty (30) days from the date of this ruling to process his intended appeal. DATED AND DELIVERED AT KISUMU THIS 28TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA ………………….………………… JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1998/eng@2026-09-28 2
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I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1998/eng@2026-09-28 3
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