https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1578

Mundia v Republic (Criminal Application E027 of 2026) [2026] KECA 1578 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1578 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Application E027 of 2026 K M'Inoti, JA July 31, 2026 Between Patrick Mwangi Mundia Applicant and Republic Respondent (Application for extension of time to appeal from the Judgment of the High Court of Kenya at Nyeri (Muya, J.) dated 11th November 2025 in HC. CRA. No. E078 of 2023) Ruling 1.By his notice of motion dated 11th May 2026, the applicant, Patrick Mwangi Mundia, seeks extension of time to appeal against the judgment of the High Court of Kenya at Nyeri, (Muya, J.) dated 11th November 2026. He also prays that his notice of appeal filed out of time be deemed as filed on time and further, for waiver of court fees. 2.The brief background to the application is that on 19th July 2022, the applicant was convicted by the subordinate court for a host of offences under the Penal Code, namely six counts of conspiracy to defraud contrary to section 317, obtaining money by false pretences contrary to section 313, forgery contrary to section 350(2) as read with section 349, and personation contrary to section 382. Upon conviction, he was sentenced to 11 years imprisonment. 3.The applicant was aggrieved and lodged an appeal in the High Court of Kenya at Nyeri. By a judgment dated 11th November 2025, the High Court dismissed the appeal against conviction but allowed the appeal against sentence and reduced by 27 months the applicant’s term of imprisonment of 11 years. 4.The applicant was still aggrieved and elected to pursue a second appeal in this Court. In the affidavit in support of the application, the appellant has deposed that he was not able to lodge his appeal on time because he was incarcerated and was unable to obtain certified copies of the proceedings and judgment expeditiously. He adds that the delay is not inordinate, nor was it deliberate or intentional. 5.The applicant deposes that his intended appeal is not frivolous and that he intends to argue, among others, that his conviction was based on contradictory, inconsistent and insufficient evidence; that the first appellate court failed to exhaustively re-evaluate the evidence as it was duty bound to do; that as regards the sentence, the High Court failed to adequately take into account the period he was in remand custody as required by section 333(2) of the Criminal Procedure Code; and that the court erred by upholding the order that the sentences imposed on him were to run consecutively rather than concurrently. 6.Lastly, the applicant states that he is a pauper and unable to raise court filing fees. 7.Although the respondent was duly served with the hearing notice on 6th July 2026, it did not respond to the application. 8.I have carefully considered this application. The factors that guide the Court in an application for extension of time under rule 4 of the Court of Appeal Rules include the following:i)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;ii)a party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;iii)whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;iv)the length of delay;v)the reason(s) for the delay;vi)the prospects of the appeal if the application is granted; andvii)the prejudice that is likely to be suffered by each party.(See Nicholas Kiptoo Korir arap Sarat v. IEBC & 7 others [2014] eKLR and Sila Mutiso v. Rose Hellen Wangari Mwangi [1999] 2 EA 231). 9.The application before me is not opposed. The judgment of the High Court was rendered on 11th November 2025 and this application was made on 11th May 2026, a delay of about six months. The applicant has explained that the delay was occasioned by his imprisonment following conviction and the ensuing inability to follow on certified copies of proceedings and judgment. His depositions to that effect are not controverted. 10.I find that the delay though inordinate, is sufficiently and convincingly explained. I also find that the applicant’s intended appeal is not frivolous, taking into account the grounds he intends to urge before the Court. I would also think that he stands to suffer more prejudice that the respondent if I do not grant this application. 11.Turning to the application for waiver of filing fees, there is no evidence before me of the means or lack thereof by the applicant. I cannot act on such bare statements by the applicant that he is a pauper. The applicant bears the burden of satisfying the Court of his lack of means to pay the requisite court fees. Other considerations under rule 118 of the Court of Appeal Rules include whether the intended appeal has reasonable prospects of success or whether it is a frivolous undertaking. The Court has to weigh the interests of an applicant who, but for lack of means, has a right of appeal which ought to be vindicated, against the prejudice likely to be suffered by the respondent. 12.As regards this prayer, I am not satisfied that the applicant has discharged the burden on him. I direct that, should the applicant wish to pursue the prayer for relief from fees, the Deputy Registrar shall first inquire into and make a report on his means. 13.Ultimately, I allow the application for extension of time and direct the applicant to file and serve the record of appeal within twenty one (21) days from the date of this ruling. It is so ordered. DATED AND DELIVERED AT NYERI THIS 31ST DAY OF JULY, 2026.K. M’INOTI.......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR