https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1428

Mumbo v Republic (Criminal Application E032 of 2026) [2026] KECA 1428 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1428 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Application E032 of 2026 B Ongaya, JA July 10, 2026 Between Bernard Omondi Mumbo Applicant and Republic Respondent (Being an application for extension of time to file and serve an appeal against the Judgment of the High Court of Kenya at Siaya (Aburili, J.) dated 20th January, 2022 in HCCRA NO. E022 OF 2020) Ruling 1.Before the Court is the applicant’s notice of motion dated 14th April, 2026 brought under Rule 4 of the Court of Appeal Rules, seeking the orders that the Honourable Court be pleased to grant the applicant extension of time to file and serve an appeal against the whole of the judgment of Hon. Justice R.E. Aburili delivered at Siaya on 20th January, 2022. 2.The application is based on the grounds set out on its face and supported by the applicant’s affidavit. The applicant stated that he was unable to file an appeal within the prescribed time because he was not supplied with a copy of the High Court Judgment in good time. That when he was eventually furnished with the said judgment, he filed an application for leave to appeal at the High Court, but the same was dismissed. He asserted that he remains desirous of pursuing the intended appeal and stands to be prejudiced if his application is not granted. Further, that his application has been brought without undue delay upon realization that he needed to seek an extension of time. 3.The applicant filed written submissions dated 17th April 2026. He contended that the delay in filing an appeal had been sufficiently explained to have been occasioned by circumstances beyond his control. He submitted that the intended appeal is arguable and raises serious issues, including claims of an illegal trial, the unconstitutionality of the mandatory death sentence, and the denial of his right to a fair hearing. That denying the application would cause him grave injustice by preventing him from exercising his constitutional right of appeal. He urged the Court to exercise its discretion to extend time for filing an appeal in the interest of justice. He relied on Articles 48 and 50 of the Constitution regarding the rights of access to justice and to a fair hearing. 4.The respondent did not respond to the application. 5.This application was listed before me on 1st July 2026 as a chamber matter in the absence of the parties or their advocates, and is to be disposed of by way of written submissions. The hearing notice shows that the parties were served on 8th June 2026. However, the respondent did not file any response or submissions towards the application. 6.Notably, there is on record a court order made on 10th June 2026 to the effect that the three-judge bench of the Court marked the applicant’s Criminal Appeal No. E142 of 2023 withdrawn. The matter appears to arise from a similar judgment, but the judgment date and file number seem different. 7.This Court has discretion under Rule 4 of the Court of Appeal Rules to consider an application for extension of time. The locus classicus case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 laid down the parameters to be considered in an application for extension of time as follows:“It is now well settled that the decision whether or not to extend the time for appealing 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: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 8.The reasons for the delay as stated for the applicant are plausible especially, in absence of an opposing respondent’s replying affidavit. The applicant has shown that he has an arguable ground of appeal. There appears to be no prejudice that the respondent may suffer if the instant application is allowed. The proposed appeal appears to be dissimilar from applicant’s Criminal Appeal No. E142 of 2023 which was marked withdrawn per this Court’s order made on 10th June, 2026. In particular, the withdrawn appeal was with respect to the judgment in HCCRA No. E016 of 2021 delivered on 24th January, 2022 while the proposed appeal is with respect to the judgment delivered on 20th January, 2022 in HCCRA No. E022 of 2020, both delivered by the High Court in Siaya. 9.In the premises, the application is allowed and time is hereby extended for the applicant to lodge the notice of appeal within 21 days from the date of this ruling. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.B. ONGAYA.................................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR