Francis Githogo Mwangi v Republic

of time has the burden of laying a basis to the satisfaction of the court, which the applicant has failed to do. The respondent argues that there are no sufficient reasons for the delay to warrant this court to exercise its discretion in favour of the applicant. The Law Whether the applicant has made out a case for the grant of an order for leave to file his appeal out of time 7. The court’s power to extend time for filing an appeal is provided for under Section 349 of the Criminal Procedure Code as follows:An appeal shall be entered within fourteen days of the date of the order or sentence appealed against. Provided that the court to which the appeal is made may for good cause admit an appeal after the period of fourteen days has lapsed, and shall so admit an appeal if it is satisfied that the failure to enter the appeal within that period has been caused by the inability of the appellant or his advocate to obtain a copy of the judgment or order appealed against, and a copy of the record, within a reasonable time of applying to the court therefor. 8. The Supreme Court in the case of Nicholas Kiptoo Korir arap Salat vs IEBC and 7 Others [2014] eKLR enunciated the principles applicable in an application for leave to appeal out of time. The court stated inter alia that:“ The underlying principles a court should consider in exercise of such discretion should include:a. Extension of time is not a right of any party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; b. A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; c. Whether the court should exercise the discretion to extend time, is a consideration to be made on a case-by-case basis; d. Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; e. Whether there will be any prejudice sufiered by the respondent if the extension is granted; f. Whether the application has been brought without undue delay. 9. The applicant was charged and convicted of the ofience of robbery with violence contrary to Section 295 as read with Section 296(2) of the Penal Code and was sentenced to death. Judgment was delivered on 11th January 2023 and sentence was meted on 18th January 2023. The applicant filed the instant application on 3rd February 2025. The applicant attributes the delay in filing his appeal to his inability to raise the required fees to file an appeal. 10. Notably, the applicant has not averred that he ever requested for judgment or the record of proceedings. Neither did he annex a copy of the request for certified copies of the proceedings and judgment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10750/eng@2025-07-17 2

page 2 of 3

Additionally, two (2) years have lapsed since conviction and the explanation provided for the delay is not satisfactory. Thus, the delay is inordinate and inexcusable in my view. 11. I have also considered the draft petition of appeal annexed to the application and noted that the intended appeal does not raise any arguable grounds without pre-empting the appeal, the intended appeal has diminished chances of success. 12. Accordingly, the applicant has not provided sufficient reasons for delay to justify exercise of this courts discretion in his favour. Thus, the application dated 3rd February 2025 lacks merit and is hereby dismissed. 13. It is hereby so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT THIKA THIS 17TH DAY OF JULY 2025. F. MUCHEMI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/10750/eng@2025-07-17 3

page 3 of 3