https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1467

Mwea v Republic (Criminal Application E011 of 2026) [2026] KECA 1467 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KECA 1467 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Criminal Application E011 of 2026 AO Muchelule, JA July 17, 2026 Between Stephen Kioko Mwea Applicant and Republic Respondent (Being an application for extension of time to appeal out of time from the Judgment of the High Court of Kenya at Machakos (D.K. Kemei, J.) dated 29th January 2020 In HCCRA No. 107 OF 2018) Ruling 1.The applicant, Stephen Kioko Mwea, was convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code by the Kangundo Law Courts and was sentenced to serve twenty-five (25) years’ imprisonment. His appeal to the High Court was dismissed on 29th January 2020. In its judgment, the High Court observed, relying on the decision in Francis Matu Mwangi -vs- Republic [2019] eKLR, that the sentence imposed by the trial court was lenient, considering that section 296(2) of the Penal Code prescribed a death sentence. 2.By the present application, the applicant seeks extension of time within which to lodge an appeal against the decision of the High Court. Although the application is undated, it was filed in 2026. The applicant attributes the delay in lodging the intended appeal to his incarceration, indigent circumstances, and the difficulties he encountered in accessing the necessary court processes. He contends that the intended appeal raises the question whether the provisions of section 333(2) of the Criminal Procedure Code were considered in determining his sentence. The respondent does not oppose the application. 3.Rule 4 of the Court of Appeal Rules empowers this Court to extend time where a party has failed to undertake any act within the period prescribed by the Rules. The discretion conferred by the Rule is wide, but must be exercised judicially and upon consideration of the circumstances of each case. 4.In the present matter, the judgment of the High Court was delivered on 29th January 2020, while the present application was filed in 2026. The delay is therefore substantial and requires a satisfactory explanation. The applicant has attributed the delay to his incarceration, inability to raise financial resources, and difficulties in accessing the court processes necessary to institute the intended appeal. 5.I am mindful that incarceration and lack of financial means, without more, do not automatically justify an extension of time. They are, however, relevant circumstances which I may consider in determining whether an applicant has provided a satisfactory explanation for failing to comply with the prescribed timelines. The question for determination is whether, in the circumstances of this particular case, those factors sufficiently explain the failure to lodge the intended appeal within time. 6.Having considered the explanation advanced by the applicant, I am satisfied that the circumstances surrounding his incarceration and inability to access the necessary legal processes materially contributed to his failure to lodge the intended appeal within the prescribed period. The applicant has been serving a custodial sentence throughout the relevant period and has explained the difficulties that affected his ability to institute the appeal. 7.I have also considered the nature of the intended appeal, which raises a question as to whether the provisions of section 333(2) of the Criminal Procedure Code were taken into account in determining the sentence imposed. Although the delay is lengthy, the respondent has not opposed the application and no prejudice has been demonstrated that would arise from granting the extension sought. 8.In the circumstances, and taking into account the length of the delay, the explanation provided, the nature of the intended complaint, and the absence of demonstrated prejudice, I am satisfied that the applicant has provided a sufficient explanation for the delay and that this is an appropriate case for the exercise of its discretion under Rule 4 in favour of the applicant. 9.Accordingly, the application is allowed. The applicant is granted leave to file and serve the notice of appeal out of time within fourteen (14) days from the date hereof. DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY 2026A.O. MUCHELULE......................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed Deputy Registrar.