https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1038

Mwangi v Republic (Criminal Application E060 of 2025) [2026] KECA 1038 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 1038 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Criminal Application E060 of 2025 S ole Kantai, M Ngugi & Katwa Kigen, JJA May 15, 2026 Between Stephen Maina Mwangi Applicant and Republic Respondent (Being an application against the Judgment of the High Court at Kerugoya in H.C. CRA. No.55 of 2013) Ruling 1.Before us is an undated Notice of Motion brought by the applicant Stephen Maina Mwangi seeking, inter alia, orders that this Honorable Court be pleased to grant an order for restoration of his appeal. The application is supported by the grounds on the face of it and in the supporting affidavit by the applicant sworn on 6th November, 2025. 2.A Brief background of the matter is that the applicant was charged in Kerugoya Chief Magistrate’s Court, Criminal Case No. 774 of 2011, and convicted of the offence of robbery with violence contrary to section 296(2) of the Penal Code and sentenced to death. Aggrieved and dissatisfied with the judgment, he filed an appeal to the High Court, Kerugoya Criminal Appeal No. 55 of 2013, which was later dismissed. The applicant preferred a second appeal to this Court to wit, Criminal Appeal No. 44 of 2018. 3.The grounds upon which the application is brought are that the applicant vide his letter to Court expressed his wish to withdraw his appeal and the same was granted. The applicant avers that he withdrew his appeal before this Court on the mistaken belief that his intended application for re-sentencing at the trial court based on the Supreme Court’s decision in Francis Karioko Muruatetu & Another v Republic [2017] eKLR, which position has since been clarified by the same Court as a mis-interpretation of its judgment and given directions, could only be entertained by the trial court on condition that his instant appeal was withdrawn. The applicant urges this Court to find that it is in the interest of justice that his appeal be restored and heard conclusively based on merit. The applicant further avers that he stands to suffer immense prejudice if he is denied an opportunity to canvass his appeal before this Court. He thus prays that the order to withdraw the appeal is set aside and the appeal restored.The respondent did not oppose the application. 4.At the hearing thereof, the applicant was present in person while learned counsel Ms. Kaniu appeared for the respondent. The applicant has filed undated written submissions wherein he reiterates the averments in his affidavit. In addition, he invokes Articles 25 (c), 48, 50(2) (q) and 159 (2)(d) of the Constitution and submits that the Court bears a heightened constitutional obligation to ensure that all procedural and substantive safeguards are fully exhausted. On her part Ms. Kaniu stated that the respondent did not wish to oppose the application. 5.We have considered the application, the affidavit in support, the written submissions by the applicant, the authorities relied upon and the law together with the input of Ms. Kaniu. 6.Rule 70 of this Court’s Rules, 2022 provides for withdrawal of appeals with rules 70(3) provides as follows:(3)An appeal which has been withdrawn under sub-rule (1) may be restored by leave of the Court on the application of the appellant if the Court is satisfied that the notice of withdrawal was induced by fraud or mistake and that the interest of justice require that the appeal be heard.” 7.In Abdi Rashid Aden Hussein v Republic [2020] KECA 276 (KLR) this Court while faced with a similar application stated as follows:Having given the application before us due consideration, we think it falls within the sub- rule. Seeing as mistake is defined in Black’s Law Dictionary as “1. An error, misconception or misunderstanding; an erroneous belief…”, we think that in the circumstances of this case,…the applicant was induced by mistake to withdraw his appeal.But mistake is not enough. For sub-rule to apply, we must be satisfied that the interest of justice require that the appeal be heard…” 8.Similarly in Njuguna v Republic [2024] KECA 1450 (KLR) this Court noted that:“The applicant has explained to the Court that he acted on a misconception. It is common knowledge that the same issue caught many inmates, lawyers, and courts similarly, necessitating the Supreme Court Directions (supra). We cannot, therefore fault the applicant. The mistake can be deemed as having been a genuine one… Given the gravity of the sentence, we agree that it will be in the interest of justice that we allow the applicant to ventilate his case before this Court.” 9.With the foregoing in mind, we find that the reason given by the applicant for withdrawing his appeal and now wishing to have it reinstated, is candid and excusable, and that this is a proper case for the Court to exercise its discretion in his favor. We hold the view that it would be unjust and indeed a miscarriage of justice to deny a party who has expressed the desire to be heard in prosecuting his case an opportunity to do so bearing in mind that the applicant in this case is facing the ultimate penalty, the death sentence. 10.The discretion of a court is meant to ensure that a litigant does not suffer injustice as a result of an excusable mistake or error. It would in our minds not be proper use of such a discretion if this Court abandons a litigant who clearly demonstrates such an excusable mistake. 11.In conclusion, we find the application is merited. Accordingly, Criminal Appeal No. 44 of 2018 is hereby restored and/or reinstated for hearing on a date to be fixed by the registryIt is so ordered. DATED AND DELIVERED IN NYERI THIS 15TH DAY OF MAY, 2026.S. ole KANTAI.......................................JUDGE OF APPEALMUMBI NGUGI.......................................JUDGE OF APPEALKATWA KIGEN.......................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR