https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1456

Mbugua v Republic (Criminal Application E009 of 2026) [2026] KECA 1456 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 1456 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Application E009 of 2026 AO Muchelule, JA July 17, 2026 Between Cornelius Thuku Mbugua Applicant and Republic Respondent (Being an application for extension of time to appeal out of time from the Judgment of the High Court of Kenya at Nairobi(J. Wakiaga, J.) dated 21st May 2020 inHCCRC No. 003 of 2018 Criminal Case 3 of 2018 ) Ruling 1.The applicant, Cornelius Thuku Mbugua, was initially charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. Pursuant to a plea bargain agreement dated 28th January 2020, which was adopted by the High Court on 19th February 2020, the charge of murder was withdrawn and substituted with the lesser offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code. The applicant pleaded guilty to the substituted charge, was convicted on his own plea, and on 21st May 2020 was sentenced to fifteen (15) years’ imprisonment. He now seeks leave to lodge an appeal against sentence out of time, contending that the trial court failed to comply with section 333(2) of the Criminal Procedure Code by taking into account the period he had spent in custody before sentence. He attributes the delay in filing the intended appeal to his indigence, incarceration, the challenges he encountered in accessing court processes, and the fact that he unsuccessfully pursued two applications before the High Court, which were dismissed for being incomplete and for want of jurisdiction. He maintains that the delay was neither deliberate nor occasioned by indolence, asserts that his intended appeal is arguable, and urges the Court to grant him an opportunity to pursue it. The application is supported by the applicant’s affidavit. 2.The application was not opposed. 3.This Court’s jurisdiction to extend time is provided under Rule 4 of the Court of Appeal Rules. The jurisdiction is discretionary. However, the burden nevertheless rests upon the applicant to place before the Court sufficient material to justify the exercise of the Court’s discretion in his favour. 4.In the present case, the applicant was sentenced on 21st May 2020, while the present application was filed approximately six years later. He attributes the delay to his indigence, incarceration, the difficulties attendant to accessing court processes while in prison, and his pursuit of relief before the High Court. In particular, he states that he filed High Court Miscellaneous Application No. E381 of 2024, which was dismissed on 5th February 2026, the High Court advising him to pursue the matter before this Court. The Court has taken that explanation into account. It is also mindful that incarceration and the attendant challenges in accessing legal processes are relevant considerations in criminal applications for extension of time. 5.However, notwithstanding those circumstances, the applicant was required to satisfactorily account for the entire period of delay. While the proceedings before the High Court explain part of the chronology, the applicant has not demonstrated what steps, if any, he took to pursue his right of appeal between the date of sentence on 21st May 2020 and the institution of the High Court proceedings in 2024. Equally, although he relies on the High Court proceedings, he did not annex the ruling delivered on 5th February 2026 or otherwise place before the Court material from which the nature of those proceedings and the extent to which they accounted for the delay can be ascertained. In the circumstances, the Court is not persuaded that the explanation advanced satisfactorily accounts for the entire period of approximately six years. Accordingly, notwithstanding that the application was unopposed, the applicant has not laid a sufficient basis for the exercise of the Court’s discretion under Rule 4, and the application is devoid of merit. 6.It is hereby dismissed. DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY, 2026.A.O. MUCHELULE......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.