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Maloba v Republic (Criminal Application E019 of 2026) [2026] KECA 1510 (KLR)

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Maloba v Republic (Criminal Application E019 of 2026) [2026] KECA 1510 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1510 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CRIMINAL APPLICATION E019 OF 2026 M SILA, JA JULY 31, 2026 BETWEEN FREDRICK NYONGESA MALOBA ...................................................... APPLICANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an application for extension of time to lodge an appeal out of time from the judgment of the High Court (Helene R. Namisi J) delivered on 27 February 2026 in HCCRA. No. E001 of 2024) RULING 1. Before this Court is an application purportedly filed by the person named as the applicant herein and which seeks the following orders: (i) That the applicant be granted leave for waiver of fees. (ii) That the time to lodge the appeal be extended and/or the notice of appeal filed out of time be deemed as properly filed with leave of the Court. 2. The application is undated, but I can see an endorsement that it is forwarded by the Officer in Charge of Kamiti Medium Security Prison, Nairobi, on 10 April 2026. I will assume that this is the date that the application was lodged. 3. The application is based on three grounds, being that: the applicant cannot raise the court fees required for preparation of the record of appeal; that his constitutional rights of appeal will be denied if the application is not granted; and that the intended appeal has high chances of success. 4. The application is allegedly supported by the ‘affidavit’ of the applicant. I say allegedly, because this ‘affidavit’ cannot pass for an affidavit. It is neither dated nor is it commissioned and it is not possible for this court to tell whether indeed this is the affidavit of the person named as the applicant. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1510/eng@2026-07-31 1

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5. Be that as it may, this ‘affidavit’ avers that the applicant was convicted and sentenced to 10 years imprisonment vide Ruiru Sexual Ofience Case No. E041 of 2021; that being dissatisfied, the applicant appealed to the High Court at Thika in Criminal Appeal No. E001 of 2024, which appeal was not only dismissed on 27 February 2026, but the sentence of 10 years was enhanced to 20 years; that the sentence was enhanced without him being warned by Court though he was issued with a Notice of Enhancement of sentence; that he has now decided to lodge his appeal to the Court of Appeal to challenge the conviction and sentence; that the appeal has high chances of success. 6. To the ‘affidavit’ there is annexed the judgment of the High Court and a draft Memorandum of Appeal. 7. I have not seen anything opposing the application and neither party filed submissions towards the application. I have given the same due consideration. 8. It is apparent that the application seeks two orders. The first is for waiver of filing fees and the second is for extension of time to file a notice of appeal out of time. There is however a serious challenge facing this application and this concerns the purported ‘affidavit.’ What I have is a document titled ‘affidavit’, but as I have pointed out earlier, that document is not dated and is not commissioned. I only see the name of Fredrick Nyongesa Maloba, the alleged applicant, and a thumbprint. This certainly cannot be considered to be an affidavit. 9. An affidavit is supposed to be commissioned by a person authorized to administer oaths and this is elaborated by Section 4 of the Oaths and Statutory Declarations Act, Cap 15, Laws of Kenya, which provides as follows: “ A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any subordinate court.” 10. A document purporting to be an affidavit, but which is not commissioned, cannot, by any stretch, be considered to be an affidavit. Failure to have an affidavit commissioned is a fundamental and fatal flaw which is not a mere technicality or irregularity that may be cured by Article 159 (2) (d) of the Constitution. It is fatal because such affidavit has not been verified to be the true statement of the person named therein. The purpose of having an affidavit commissioned by a commissioner of oaths is to confirm, without doubt, that the person named therein as making the statement is the actual person, and that such person wishes to own the statements therein under oath, and is ready to face any consequences that may arise from the statements so made. This is important, because a false statement given under oath is an ofience as stipulated by Section 11 of the Oaths and Statutory Declarations Act. Consequently, where the statements are not commissioned by a Commissioner for Oaths then such statements cannot be said to be made in the form of an affidavit. 11. In as much as the application may have been prepared while in prison, this court cannot shun fundamental principles that go to the root of the authenticity and legality of important court documents. The court cannot shut its eyes and allow such a document to pass as an affidavit. As I have taken time to elaborate, it is of critical importance that the court is convinced that the person making the application is actually the applicant, and not some busy body somewhere, and this can only be confirmed if the application is supported by a proper affidavit; that is, an affidavit that is sworn by the applicant, and commissioned by a Commissioner for Oaths. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1510/eng@2026-07-31 2

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12. I am afraid that without the affidavit herein being Commissioned, this court cannot say that there is any affidavit supporting the application, and cannot verify that it is indeed the applicant who has made the application before this court. In essence, I do not have a properly authenticated application before me that can be said to be emanating from the person named as applicant. Without being supported by a proper affidavit, the application before me is fatally and incurably defective and it will be pointless going to the merits or demerits of it. 13. The proper course is to have the application struck out and it is hereby struck out. 14. There will be no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026. MUNYAO SILA ......................... JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1510/eng@2026-07-31 3

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