https://new.kenyalaw.org/akn/ke/judgment/keca/2026/997

Okongo alias Daddy Brian & another v Republic (Criminal Application E010 of 2026) [2026] KECA 997 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KECA 997 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Application E010 of 2026 BM Kairaria, JA May 22, 2026 Between Joseph Okongo alias Daddy Brian 1st Applicant James Mutiso alias Daddy Mutiso 2nd Applicant and Republic Respondent (An application for extension of time from the judgment of the High Court of Kenya at Kakamega (C. Kariuki, J.) in HC.CR.C NO. E004 0F 2022) Ruling 1.Before me for determination is a Notice of motion application dated 16th February 2026. It is drawn and filed by Joseph Okongo Alias Daddy Brian the applicant in person and filed through Shikusa Borstal Institution in Kakamega where he is held together James Mutiso alias Daddy Mutiso. I note from the title of the application that it was not intended to be filed before the Court of Appeal but rather at the High Court of Kenya at Narok in HCCMISC.CASE NO. E037 OF 2025 where he proposes to move the High Court for two orders orders as follows:a.the applicant be granted waiver of fees andb.the time to lodge the appeal be extended and the notice of appeal be filed out of time. 2.The grounds upon which the application is premised are set out on the face of the application. He states that he cannot raise court fees for preparation of his appeal because he is in prison, he has never received assistance from outside prison since his arrest and subsequent conviction for the offence of murder contrary to section 203 as read with section 204 of the penal code, the intended appeal has high chances of success, he failed to lodge the notice of appeal because his family members did not hire an advocate to pursue the appeal and the omission was thus not intentional.3.I note that the offence of murder that the applicant cites in the grounds in support of his application is completely different from the offence of gang rape that he says he was convicted of and sentenced to serve three years in his written submissions in support of the application. I observe that the applicant could not possibly have been tried of murder before a Magistrates. The jurisdiction to try murder cases is vested in the High Court. I can only surmise that the reference to conviction for the offence of murder in the grounds in support of the application is the unfortunate product of cut and paste attributable to the person who assisted the applicant to prepare the instant application. 4.A copy of the judgment of the trial court has not been availed to the Court neither has any decision of the High Court to which an appeal would lie from the Magistrates Court at Narok where the applicant was tried so there is really no way of telling with certainty the offence the applicant was charged of the court that tried him, the judicial officer who added down the conviction and sentence, whether that judgment was challenged on appeal to the High Court. 5.The applicant has not sworn an affidavit in support of his application. Instead Superintendent George Odera who is in charge of the Borstal institution has sworn an affidavit dated 16th February 2026 in support of the application . But the contents of that affidavit are not in fact in support of an application for extension of time to file an appeal or a notice of appeal out of time. It is couched as one in support of an application to variation of the place two years of the sentence are to be served. He states that the two minors were committed to the institution on 20th May, 2025 to serve one[1] year and then 2 years to the nearest GK prison; committing the minors to one year in the institution makes it difficult for them to successfully complete training programs which should always take a period of three years to complete and the minors registered secondary education, Joseph Okongo is in form 2 while Mutiso sat for KCSE in 2025 got a mean grade of C and is currently in vocational training at the institution. 6.The Superitendent reckons that transferring the minors to adult prison will interfere with their education program and infringe on their rights. He concludes that it would be the best interest of the minors that they remain at the borstal institution for the remaining two years of their sentence. 7.Having carefully scrutinized the application, the affidavit in support as well as the written submissions dated 27th March, 2026 I come to the conclusion that the application has been filed before the Court of Appeal by mistake. Cases from the magistrates courts do not reach the court of appeal directly. Parties in criminal cases instituted at the Magistrates court must go through the High Court by way of either appeal or criminal revision application before being escalated to the court of appeal. 8.The application before me is therefore improperly before the court. Extension of time to appeal the judgement of the magistrates Court and any variation of sentence including whether the whole sentence should be served at the Borstal Institution where the applicant was committed ought to be first placed before the High Court for consideration before being escalated to this Court. 9.The applicants are at liberty to appropriately move the High Court for consideration of both the question of extension of time to appeal as well as variation of sentence terms. The applicant could benefit from legal aid to assist him in framing and filing an appropriate application in the appropriate forum. 10.In the upshot, I find that the application dated 16th February, 2026 is incompetent and is hereby struck out. DATED AND DELIVERED AT NAKURU THIS 22ND DAY OF MAY, 2026.MURUNGI B. KAIRARIA........................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR