Mutemwa v Republic (Criminal Application E049 of 2026) [2026] KECA 1990 (KLR) (30 September 2026) (Ruling) Neutral citation: [2026] KECA 1990 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAKURU CRIMINAL APPLICATION E049 OF 2026 JM MATIVO, JA SEPTEMBER 30, 2026 BETWEEN ANTHONY KYALO MUTEMWA .......................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an application for extension of time to appeal against the conviction and sentence of the High Court of Kenya at Nakuru (Prof. Ngugi, J.) dated 20th February 2020 in CRA No. E08 of 2016) RULING 1. The applicant was charged with the oence of delement contrary to Section 8 (1) (2) of the Sexual Offences Act in Nakuru CMCC Criminal Case No. 172 of 2014 and sentenced to life imprisonment. His appeal being Nakuru HCCRA NO. E08 of 2016, was dismissed on 20th February 2020. Though aggrieved, the applicant did not le a notice of appeal within the prescribed period. He now prays for extension of time in his application dated 2nd July 2026, the subject of this ruling. Notably, the applicant has not provided any specic reasons for the delay. 2. The respondent submits that the delay of 6 years in ling the application for extension of time is inordinate, and that, no satisfactory explanation has been provided. However, the respondent strongly feels that given the length of the sentence and the challenges experienced by the applicant in getting copies of the proceedings and judgment, the respondent does not oppose the application for an extension of time to lodge a notice of appeal. Therefore, the respondent urged this Court to allow the application. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1990/eng@2026-09-30 1
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3. Rule 61 (1) of this Court's Rules, 2022 provides that: “ (1) A person who desires to appeal to the Court shall give notice in writing, which shall be lodged in six copies with the Registrar of the Superior Court at the place where the decision against which it is desired to appeal was given, within fourteen days after the date of that decision, and the notice of appeal shall institute the appeal.” 4. Under Rule 4 of the Court of Appeal Rules, 2022, this Court is vested with a wide discretion to enlarge the time prescribed by the Rules, or by any decision of the Court or of a Superior Court, for the performance of any act permitted or required thereunder. The discretion may be exercised upon such terms as the Court may deem just. (See Nicholas Kiptoo Arap Koriri vs. IEBC and 7 Others [2015] eKLR). 5. In my considered opinion, the overarching criterion for granting leave to appeal out of time is whether it is in the interests of justice to do so. The Court conducts a balanced evaluation of several specic factors. However, the "interests of justice" is not a freestanding excuse to overlook deadlines, but rather a legal framework for a balancing exercise. The interests of justice mandate that the Court weighs multiple factors against one another rather than focusing on a single issue. 6. The Court will not look at the applicant’s delay in isolation. Under the banner of the interests of justice, the Court performs a holistic evaluation of the length of the delay, the reasonableness of the explanation, the prospects of success and the prejudice to both the State and the applicant. 7. In criminal matters, the interests of justice are heavily weighted by constitutional considerations, specically, the right to a fair trial and the right not to be deprived of freedom arbitrarily. If a strict application of procedural deadlines would result in an obviously innocent person remaining in prison, the interests of justice will heavily favour granting the extension. 8. Conversely, the interests of justice also demand that criminal matters reach nality. The State and the public have an interest in knowing that a criminal judgment is settled. Therefore, a completely unexplained or agrant delay will conict with the interests of justice, prompting the Court to deny the extension. In the interests of justice, strong prospects of success can compensate for a poor explanation for delay and conversely, a minor delay can be forgiven even if the merits are modest. The "interests of justice" ensures that the rules of court remain exible instruments to achieve true substantial justice, rather than rigid technical hurdles that create unfair outcomes. 9. I have looked at the peculiar circumstances of this case, the penalty imposed and weighed the interests of justice as discussed above. I am persuaded that this is a proper case for this Court to exercise its discretion in favour of the applicant. Consequently, the application dated 2nd July 2026 is hereby allowed. The applicant shall lodge the notice of appeal within fourteen (14) days from the date hereof and shall thereafter le the record of appeal within forty-ve (45) days. DATED AND DELIVERED AT NAKURU THIS 30TH DAY OF SEPTEMBER, 2026. J. MATIVO ........................... JUDGE OF APPEAL I certify that this is a true copy of the original. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1990/eng@2026-09-30 2
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Signed. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1990/eng@2026-09-30 3
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