Mwiti v Republic (Criminal Application E058 of 2024) [2026] KECA 1639 (KLR) (31 July 2026) (Ruling)

Mwiti v Republic (Criminal Application E058 of 2024) [2026] KECA 1639 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1639 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Application E058 of 2024 MN Nduma, JA July 31, 2026 Between Josephat Mwiti Applicant and Republic Respondent (Being an application for extension of time to file an Appeal out of time from the decision of the High Court of Kenya at Meru (J. Lesiit & M. Kasango, JJ.) delivered on 29th July, 2021 in HCCRA NO.72 OF 2007) Ruling 1.Josephat Mwiti, the applicant was convicted for the offence of robbery with violence contrary to section 295 as read with 296(2) of the Penal Code before the Chief Magistrate’s Court in Meru Criminal Case No. 565 of 2016. Dissatisfied with the judgement, he appealed before Meru High Court under Criminal Appeal No. 72 of 2007 where the matter was dismissed. Further aggrieved, he now intends to appeal both the conviction and sentence albeit out of time. The present application dated 2nd July 2024 is therefore intended to remedy the delay. It is supported by the applicant’s sworn affidavit dated 2nd June 2024. 2.The applicant contends that the appeal was not filed in time due to a delay in accessing the High Court judgement. Alongside the application, he has annexed a notice of appeal and memorandum of appeal both dated 2nd July 2024. 3.The application came up for hearing on 23rd July 2026 and was canvassed by way of written submissions. 4.I take note that the courts directions on submissions were duly served upon both parties on 10th July 2026 at 9:07 a.m. and 9:08 a.m. Notably, the applicant did not file submissions to the application. 5.Principal Prosecution Counsel, Mr. Okaka for the respondents opposed the application through written submissions dated 21st July 2026. Counsel Okaka averred that the application for extension of time had previously been determined and he annexed a copy of a ruling delivered in Nyeri Court of Appeal, Criminal Application E110 of 2024. Counsel Okaka further submitted that, if the intention was to file a reference, the correct forum would be the Court of Appeal registry in Nyeri not Eldoret. 6.The issue for determination is therefore whether the applicant has laid basis for grant of an order for enlargement of time to file the intended appeal out of time? 7.It is trite law that this Court has unfettered jurisdiction under Rule 4 of the Court of Appeal Rules, 2022 to grant orders for extension of time. Whereas the power is discretionary, it is to be exercised judiciously and not whimsically. Consequently, I am guided by the principles set out in Nicholas Kiptoo Arap Korir vs. Independent Electoral and Boundaries Commission & 7 others [2014] eKLR where the Supreme Court held that;“In exercising discretion to extend time for filing an appeal, the court ought to consider extension of time not as a right of a party but as an equitable remedy only available to a deserving party, at the discretion of the court. In doing so, the court ought to consider the; period of delay, reasons for the delay and the potential prejudice to the respondent” 8.Extension of time, as determined by the Supreme Court, is not a right but an equitable remedy. Consequently, a party seeking to benefit from it, ought to lay satisfactory basis for it to be granted. 9.Having considered the application, affidavit in support and the annextures, the period of delay cannot be determined. The year of determination is not indicated correctly, it reads 29th July 20210, which appears to be a typographical error. As a result, there is insufficient material before me to determine the period of delay. 10.On the reasons for the delay, I find the reason advanced unsatisfactory. I have perused the Kenya law website for the alleged Criminal Application E110 of 2024 on extension of time. Upon reading the same, I confirm that the parties and issues before me are similar to what was determined under the citation: Mwiti v Republic [2024] KECA 1369 (KLR). As submitted by the respondent, the applicant had already been granted leave to file his appeal out of time on 3rd October 2024. He was subsequently granted leave to appeal within 21 days of the ruling. The applicant has not advanced any reasons for failing to act on the orders granted approximately 1 and 1/2 years ago. Further, having perused the material before me, the ruling is not controverted. As such, the issue for extension of time was definitively settled by the ruling of 3rd October 2024 and the same has not been disturbed. 11.In the circumstances and having considered the three parameters holistically, I find that the application dated 2nd July 2024 lacks merit. The application is hereby dismissed with no order as to costs. DATED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026.NDUMA NDERI………………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR