https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1367

Mutie v Republic (Criminal Application E026 of 2026) [2026] KECA 1367 (KLR) (7 July 2026) (Ruling) Neutral citation: [2026] KECA 1367 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Application E026 of 2026 A Ali-Aroni, JA July 7, 2026 Between Job Ndunda Mutie Applicant and Republic Respondent (Being an application for leave and extension of time to lodge and serve a notice of appeal and record of appeal out of time against the Judgment of the High Court of Kenya in Machakos (Adagi, J.) delivered on 5th December, 2024 in HCCRA No. E077 of 2023) Ruling 1.Before the Court is an application by way of a notice of motion dated 14th March 2024, pursuant to Articles 25(c), 48, 50 and 159 of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act, Rule 4, 77 and 84 of the Court of Appeal Rules, 2022 (‘the Rules), seeking leave and extension of time to lodge and serve a notice of appeal and record of appeal out of time. 2.The application is predicated on the grounds on the face of the application and further supported by the applicant’s affidavit sworn on 12th May 2026, in which he deposes that he was charged before the Senior Principal Magistrate's Court at Kang’undo in Case No. E053 of 2021 with the offence of defilement; upon conclusion of the trial he was convicted and sentenced to life imprisonment; being dissatisfied with both conviction and sentence, he lodged an appeal before the High Court at Machakos in HCCRA E077 of 2023; and on 5th December 2024, the High Court dismissed the appeal on conviction but substituted the sentence of life imprisonment with thirty (30) years imprisonment; he remains dissatisfied with the entire judgment of the High Court and intends to challenge it and has since instructed his advocates on record to institute the intended second appeal. 3.He deposes further, that the timelines prescribed for filing the notice of appeal and record of appeal lapsed before the same could be filed; the delay in filing the intended appeal was neither deliberate nor intentional but was occasioned by difficulties in obtaining typed proceedings, copies of the judgment and relevant court documents necessary for purposes of lodging the appeal; further, the applicant’s family lacked the financial means necessary to promptly secure legal representation and engage counsel to prepare and file the intended appeal; being an incarcerated person, he wholly depended on relatives, well- wishers and external assistance in obtaining legal representation, proceedings and legal advice; upon obtaining legal assistance and the necessary court documents, the applicant immediately moved this Court without undue delay. 4.He deposes further that the intended appeal raises serious points of law with high chances of success as the intended appeal shall principally challenge violation of the applicant’s constitutional right to fair trial under Article 50 of the Constitution, failure by the prosecution to supply witness statements, documentary exhibits and pre-trial materials before hearing, failure by the trial court to promptly inform him of his right to legal representation, irregular voire dire examination of the complainant, conviction founded on contradictory and unreliable evidence, defective charge sheet and the excessiveness of the sentence imposed. 5.He claims that unless this Court enlarges time and grants the orders sought, he stands to suffer grave prejudice as he risks losing his constitutional right of appeal; no prejudice shall be occasioned upon the respondent if the orders sought are granted and it is only fair, just and in the interests of justice that the application be allowed. 6.The respondent has filed a letter dated 26th June 2026 stating that it does not intend to oppose the application. 7.Learned counsel for the applicant filed submissions dated 6th July 2026, and submits that this Court has wide and unfettered discretion to enlarge time where sufficient cause is shown. In support he relies on Salat vs Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR), submitting that the extension of time is an equitable remedy available to deserving litigants and that an applicant must satisfactorily explain the delay while demonstrating that the appeal is arguable and that no prejudice will be suffered by the respondent; the delay was neither deliberate nor inexcusable and explains that the applicant experienced severe delays in obtaining typed, certified copies of the trial proceedings and judgment from the Machakos court registry, which were necessary. Furthermore, his incarceration at Kamiti Maximum Prison restricted his movement, communication, and ability to follow up with the registry or freely instruct counsel. He also faced financial constraints, relying entirely on relatives and well-wishers to mobilize funds to hire a counsel. On the merits of the appeal counsel rehashes averments in the applicant’s affidavit. 8.I have considered the application, the supporting affidavit and the submissions by counsel. The principles governing the exercise of this Court’s discretion under Rule 4 of the Rules are well settled. The Rule allows this Court to exercise discretion to extend the time limited by the Rules for doing any act authorized or required by the Rules. In Boniface Emuria Loro vs Republic [2003] KECA 91 (KLR), this Court allowed extension of time in a similar situation. 9.The judgment sought to be appealed against was delivered on 5th December 2024, whereas the present application was filed on 14th March 2026. There is therefore a delay which calls for explanation. The applicant attributes the delay to difficulties in obtaining typed proceedings, copies of the judgment and other relevant court documents, financial constraints and the limitations attendant to incarceration. The applicant further explains that he depended on relatives and well-wishers to secure legal representation and facilitate follow-up on the proceedings and preparation of the intended appeal. 10.In Ngige vs Republic (Criminal Application E013 of 2024) [2024] KECA 848 (KLR), the Court held; -“I have considered the application and find the delay explained as having been caused by slow administrative action to supply the proceedings of the superior court in time for the filing of the appeal before expiry of time limited to do so. In the premises, I find merit in this application.” 11.In my view, the explanation tendered by the applicant is plausible in the circumstances of this case. The applicant is serving a custodial sentence and his ability to promptly access court documents and legal representation was evidently constrained. Upon obtaining legal assistance and the necessary documents, the applicant moved the Court without undue delay. I am therefore satisfied that sufficient cause has been shown to warrant the exercise of this Court’s discretion. 12.From the draft grounds alluded to in the supporting affidavit and submissions, the intended appeal raises issues touching on the right to a fair trial under Article 50 of the Constitution, alleged failure to supply witness statements and documentary exhibits, the propriety of the voire dire examination, the validity of the charge sheet and the propriety of sentence. Without expressing any conclusive view on the merits, I am satisfied that the intended appeal is not frivolous. 13.The respondent has not opposed the application and no prejudice has been demonstrated. On the other hand, denying the applicant an opportunity to pursue his intended appeal would impede his constitutional and statutory right of appeal. 14.In the circumstances, and in the interests of justice, I am persuaded that this is a proper case for the exercise of this Court’s discretion under Rule 4 of the Court of Appeal Rules. 15.Consequently, the notice of motion dated 14th March 2026 is hereby allowed. The applicant shall file and serve the notice of appeal within fourteen (14) days from the date hereof and thereafter lodge and serve the record of appeal within sixty (60) days of filing the notice of appeal. DATED AND DELIVERED AT NAIROBI THIS 7TH DAY OF JULY, 2026.ALI-ARONI…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR