David Onyango Mwango v Republic

2. By his application dated 12th March 2026, the applicant seeks leave to lodge and serve a notice of appeal out of time against the said judgment. He further prays that the notice of appeal annexed to the application be admitted and deemed duly filed upon payment of the requisite Court fees. 3. The grounds in support of the application are that: (a) the intended appeal raises substantial and arguable points of law; (b) he was traumatized after the dismissal of his first appeal and did not know the procedure for filing a notice of appeal; (c) he sought legal advice and with the help of prison officers, filed a notice of appeal to Kilgoris High Court which he intended to be forwarded to the Court of Appeal at Nakuru, but the same was never processed; (d) he was later advised to file a notice of appeal through the CTS system, but when the prison officer checked, there was no direct link to file a notice of appeal to the Nakuru Court of Appeal; (e) the delay in filing the notice of appeal was not deliberate but arose from circumstances beyond his Page 2 of 6

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control, including reliance on prison administrative systems; (f) he did not have an advocate to make followups and was background; equally (g) the hampered intended serious Page 3 of 6 by a poor appeal family raises

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constitutional and legal questions, including whether the prosecution proved the case beyond reasonable doubt, whether the DNA evidence exonerated him and whether the mandatory minimum sentence was constitutional; (h) it is in the interests of justice that he be afforded an opportunity to ventilate his appeal on merit; and, (i) the respondent will suffer no prejudice. 4. The respondent filed written submissions dated 27 th August 2026 conceding the application and appreciated the applicant's incarceration and the technical challenges which may have hampered his efforts to lodge his notice of appeal. 5. 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.” 5. 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 Page 4 of 6

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permitted or required thereunder. The discretion may be exercised upon such terms Page 5 of 6

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as the Court may deem just. (See Nicholas Kiptoo Arap Koriri vs. IEBC and 7 Others [2015] eKLR). 6. I have duly considered the reasons proffered by the applicant. 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 specific 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. 7. 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. 8. In criminal matters, the interests of justice are heavily weighted by constitutional considerations, specifically, the right to a fair trial and the right not to be deprived of Page 6 of 6

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freedom arbitrarily. If a strict application of procedural deadlines would Page 7 of 6

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result in an obviously innocent person remaining in prison, the interests of justice will heavily favour granting the extension. 9. Conversely, the interests of justice also demand that criminal matters reach finality. The State and the public have an interest in knowing that a criminal judgment is settled. Therefore, a completely unexplained or flagrant delay will conflict 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 flexible instruments to achieve true substantial justice rather than rigid technical hurdles that create unfair outcomes. 11. I have looked at the reasons offered for the delay, the period of delay 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 12 th March 2026 is hereby allowed. The applicant shall lodge the notice Page 8 of 6

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of appeal within fourteen (14) Page 9 of 6

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days from the date hereof and shall thereafter file the record of appeal within forty-five (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. Signed. DEPUTY REGISTRAR. Page 10 of 6

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