https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1079

Mbuthia v Republic (Criminal Application E020 of 2026) [2026] KECA 1079 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KECA 1079 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Application E020 of 2026 JM Mativo, JA June 3, 2026 Between Eliud Mbuthia Applicant and Republic Respondent (Being an application for extension of time to file an application for reinstatement from judgment of the High Court of Kenya at Narok (F. Gikonyo, J.) dated 25th July 2023 in CRA No. 42 of 2017 Formerly Nakuru HCA No. 55 of 2016) Ruling 1.Eliud Mbuthia (the applicant) in his application dated 9th April 2026 seeks leave to appeal out of time against the judgment issued in Narok HCCRA No. E42 of 2017 delivered on 25th July 2023. He states that he was convicted of the offence of robbery with violence contrary to section 296 (2) of the Penal Code and sentenced to death and he is desirous of exercising his right of appeal and that his appeal has high chances of success. He attributes the delay in filing his appeal to the failure to be supplied with the trial court’s proceedings. 2.In support of his application, the applicant submitted that Rule 4 grants this Court unfettered discretion. Further, the Court is required to consider the length of the delay, the arguability of the appeal and prejudice to be suffered by the respondent. 3.Mr. Omutelema, learned counsel for the respondent in his written submissions dated 12th May 2026 concedes to the application. 4.It is trite that this Court has unfettered discretion under Rule 4 to extend time for the doing of any act under the Rules. However, that discretion must be exercised judicially. In this regard, it has also been stated time and again that the reason for the delay, the length of the delay, the degree of prejudice to be suffered by the respondent and the possible chances of the intended appeal succeeding, are all relevant factors. This discretionary power, however, is judicial in nature and must be confined to the rules of reason and justice. 5.Though in the context of a civil application, the Supreme Court in Nicholas Kiptoo Arap Korir Salat vs. I.E.B.C. & 7 Others [2014] eKLR stated:“1.Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court;2.A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the Court;3.Whether the Court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;4.Whether there is a reasonable reason for the delay, the delay should be explained to the satisfaction of the Court;5.Whether there will be any prejudice suffered by the respondents if the extension is granted;6.Whether the application has been brought without undue delay; and7.Whether in certain cases, like election petitions, public interest should be a consideration for extending time.” 6.I have considered the application, the reason in support of the application and I am satisfied that the applicant is deserving exercise of this Court’s discretion. Accordingly, I allow the application dated 9th April 2026 and direct the applicant to file his notice of appeal (if not filed) within 14 days from today and to file the appeal within 45 days from today. DATED AND DELIVERED AT NAKURU THIS 3RD DAY OF JUNE, 2026.J. MATIVO...................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.Deputy Registrar