[2023] KECA 1361 (KLR)

Chester Insurance Brokers Limited v Commissioner of Domestic Taxes (Civil Appeal (Application) E745 of 2022) [2023] KECA 1361 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KECA 1361 (KLR)

Republic of Kenya

In the Court of Appeal at Nairobi

Civil Appeal (Application) E745 of 2022

S ole Kantai, M Ngugi & PM Gachoka, JJA

November 10, 2023

Between

Chester Insurance Brokers Limited

Applicant

and

Commissioner of Domestic Taxes

Respondent

(Being an application for stay of execution of the demand notice and/or execution of decree from the Judgment of the High Court of Kenya at Nairobi (Majanja, J.) dated 3rd November, 2021 in HC. COMMITA E001 OF 2020 Tax Appeal E001 of 2020 )

Ruling

1. Mativo, JA, sitting as a single Judge was asked in an application dated 13th October, 2022 for leave to file an appeal out of time against a Judgment of the High Court of Kenya at Nairobi delivered on 3rd November, 2021. The learned Judge considered the application and dismissed it in a ruling made on 8th February, 2023.

2. In a Motion on notice said to be brought under Order 45 Civil Procedure Rules 2010, Section 1A, 1B, 3A, 80 Civil Procedure Act, Rules 43, 49, 55 and 82 Court of Appeal Rules we are asked in the main for the following orders:2. That the Honourable Court do order stay of execution of the demand notice and/or execution of decree of High Court of Ksh.45,098,687/= as demanded by the Respondent pending the hearing and determination of this Application.//3. That the Honourable Court be pleased to review and/or set aside the Ruling of Justice Mativo (Judge) of 8th February 2023 which Ruling declined to grant the Applicant leave to file Record of appeal and memorandum of appeal.4. That in alternative to the above, a full bench to be constituted to hear the subject application in accordance with Rule 55(2) of the Court of Appeal Rules.5. That costs of this suit be provided for.”

3. In grounds in support of the Motion and in an affidavit of Pomesh Bansislal, a director of the applicant it is said amongst other things that the applicant had filed a notice of appeal; that typed proceedings were issued by the High Court on 5th August, 2022; that record of appeal was filed out of time; that the single Judge of this Court dismissed an application for extension of time and the respondent had since demanded payment of the Judgment sum; that the applicant had filed a reference under rule 55(1) of the Court of Appeal Rules which had not elicited any response from the Registrar of this Court and at grounds 11 and 12 of the Motion:"11. The application for leave to appeal out of time/extension of time ought to have been heard by full bench and not a single judge pursuance (sic) to Rule 55 (2) of the Court of Appeal Rules and thus the bench was not properly constituted to hear and determine the said application hence the trial judge did not have the jurisdiction thereof.12. Furthermore, the Honourable court failed to consider Rule 82 (1) of the Court of Appeal Rules that where a party makes an application for typed proceedings, the time taken to assemble the proceedings is exempted in the computation of the 60 days and which in our case should start running from 5th of August 2022 when the Applicant received typed proceedings. This is sufficient reason to justify exercise of discretion for extension of time as evidenced by the certificate of delay from the Deputy Registrar.”

4. The application before the single Judge was made under rule 4 of the Rules of this Court. The Judge considered it and dismissed it. The applicant says that the application should not have been heard by a single Judge but by a full bench. The practice of this Court and it is so provided under Rule 55 of the Rules is that applications for extension of time under the said rule are heard and determined by a single Judge. A party dissatisfied with such a decision has the opportunity under rule 57 of The Court of Appeal Rules, 2022 to apply either informally to the Judge at the time when the decision is given or by writing to the Registrar within 7 days thereafter to have the order, direction or decision varied, discharged or reversed by the Court.

5. We have seen replying affidavit by Leparan Lemiso, an officer of the respondent who is also a lawyer, who talks of matters relating to Order 45 Civil Procedure Rules (one of the provisions cited by the applicant in the Motion). That provision has no application to matters in this Court. He says, in addition, that the single Judge considered all relevant factors including the provisions of rule 82 of the Court of Appeal Rules to make the decision and further that the applicant had not attached a Certificate of Delay to the Motion that was before the Judge.

6. We have considered written submissions by both sides which were not highlighted because counsel for the applicant who had been served with a hearing notice did not attend the virtual hearing when the matter came up for hearing on 27th September, 2023.

7. We have also looked at all the material that was before the single Judge to be able to make a determination on the reference under rule 57 of this Court’s rules. We consider this to be such a reference.

8. The single Judge considered the factors to take into account in an application for extension of time as were stated by the Supreme Court of Kenya in Nicholas Kiptoo arap Korir Salat v IEBC [2014] eKLR. He also considered the holding by the Supreme Court in that case that a party seeking extension of time has the burden to lay a basis to the satisfaction of the Court why the court’s discretion should be exercised in his favour and delay should be explained to the satisfaction of the court. Having considered all the material before him the single Judge came to the conclusion that the applicant, who had not obtained a certificate of delay, was not entitled to exercise of discretion to extend time for filing an appeal out of time.

9. The applicant stated in the Motion that it applied for proceedings vide a letter dated 16th November, 2021 and that proceedings were availed on 5th August, 2022. Judgment had been delivered on 3rd November, 2021. The single Judge found that in the absence of a certificate of delay the period 3rd November, 2021 (when Judgment was delivered) to 5th August, 2022 (when the applicant alleged to have received proceedings) was not satisfactorily explained.

10. We have considered that issue and have come to the same conclusion that delay in filing record of appeal was not satisfactorily explained. We have reached the same decision as the single Judge who dismissed the application.

11. Having reached the decision on the reference upholding the decision of the single Judge the prayer for stay of execution cannot lie at all.

12. The reference lacks merit and we dismiss it with costs to the respondent.

DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. S. OLE KANTAI...............................JUDGE OF APPEALMUMBI NGUGI...............................JUDGE OF APPEALM. GACHOKA CIArb, FCIArb...............................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR