IN THE COURT OF APPEAL AT NAKURU (CORAM: MATIVO, JA (IN CHAMBERS) CRIMINAL APPLICATION NO. NAK E073 OF 2026 BETWEEN STEPHEN MWENDA MBOGO............................APPLICANT AND REPUBLIC..................................................RESPONDENT (Being an application for extension of time against conviction and sentence from the High Court of Kenya at Nyahururu (L. Mutende, J.) dated 29th May 2025 in CRA No. E030 of 2025). ********* RULING 1. Stephen Mwenda Mbogo was charged, tried and convicted for the offence of robbery with violence contrary to Section 296 (2) of the Penal Code in Nanyuki CMCC CR Case No. 1791 of 2017. He was sentenced to suffer death. His appeal to the High against both conviction and sentence being Nanyuki HCR Appeal No. E030 of 2025 was unsuccessful. He did not file his notice of appeal or his appeal within the stipulated time. He claims that he relied on his relatives to hire a lawyer for him, but they did not do it owing to financial constraints. He Page 1 of 4
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seeks this Court’s permission to appeal out of time. Page 2 of 4
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2. In response to the application, Learned Counsel Mr. Omutelema filed submissions dated 30 th September 2026. Despite observing that the one-year delay is inordinate, he nevertheless appreciates that the severity of the sentence imposed and the need to grant the appellant an opportunity to be heard by this Court. Accordingly, he concedes the application. 3. Rule 4 of the Court of Appeal Rules, 2022 vests this Court 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). 4. I have duly considered the reasons proffered by the applicant. Even though the application is unopposed, the applicant is nonetheless required to satisfy the established principles governing the exercise of the Court’s discretion. (See Nicholas Kiptoo Arap Korir Salat vs. IEBC and 7 Others, Page 3 of 4
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[supra]. The overarching criterion for granting leave to appeal out of time is whether it is in the interests of justice to do so. The Page 4 of 4
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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. 5. 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. 6. In criminal matters, the interests of justice are heavily weighted by constitutional considerations, specifically, the right to a fair trial, the right to access appellate justice, and above all the right if a strict application of procedural deadlines would result in a person with an arguable appeal remaining in prison or facing the death penalty, the interests of justice will heavily favour granting the extension. 7. Conversely, the interests of justice also demand that criminal matters reach finality. The State and the public Page 5 of 4
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have an interest in knowing that a criminal judgment is settled. Therefore, a completely unexplained or flagrant delay will Page 6 of 4
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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. 8. I have looked at the reasons offered for the 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 20th August 2026 is hereby allowed. The applicant shall lodge the notice of appeal within fourteen (14) days from the date hereof and shall thereafter file the record of appeal within forty-five (45) days. Dated and delivered at Nakuru this 5th day of October, 2026. J. MATIVO .......................... . JUDGE OF APPEAL I certify that this is a true copy of the Page 7 of 4
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original. Signed. DEPUTY REGISTRAR. Page 8 of 4
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