https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8586

Commissioner Customs & Border Control v Unilever Kenya Ltd (Income Tax Appeal E037 of 2025) [2026] KEHC 8586 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8586 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Income Tax Appeal E037 of 2025 FG Mugambi, J June 19, 2026 Between Commissioner Customs & Border Control Applicant and Unilever Kenya Limited Respondent Ruling 1.The application dated 24th February 2026 seeks leave to extend the time within which to file a Memorandum of Appeal against the Judgment of the Tax Appeals Tribunal delivered on 21st November 2024. The applicant further prays that the Memorandum of Appeal already filed in Commissioner of Customs & Border Control V Unilever Kenya Ltd be deemed as properly filed before this Honourable Court. The application is supported by the affidavit of Hellen Njoroge and opposed through a Replying Affidavit sworn by Bernhard Kariuki Mwangi on 8th May 2025. I have carefully considered the pleadings, affidavits, and submissions filed by both parties. Analysis and Determination 2.The application is anchored on Legal Notice No. 226 of 2015, Order 50 Rules 4 and 6 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act. Both parties acknowledge that Rule 4 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015 empowers the Court to extend time for filing an appeal for sufficient cause. 3.The principles guiding the exercise of discretion in extending time were otherwise set out by the Supreme Court in Nicholas Kiptoo Arap Korir Salat V Independent Electoral and Boundaries Commission & 7 Others, [2014] eKLR. The Court emphasized that extension of time is not a right but an equitable remedy, available only to deserving parties who demonstrate sufficient cause. The Court must consider, among other factors:i.Whether the delay has been reasonably explained;ii.Whether the application was brought without undue delay;iii.Whether prejudice will be occasioned to the respondent;iv.The importance of the matter and whether the intended appeal raises arguable issues; andv.The wider interests of justice. 4.The applicant attributes the delay to work exigencies and inadvertent mis-diarising of the filing deadline. The delay was 18 days, which the applicant submits is neither inordinate nor deliberate. It is further argued that the intended appeal raises serious and arguable points of law with a high probability of success, as demonstrated in the annexed Memorandum of Appeal. The applicant contends that no prejudice will be suffered by the respondent if the extension is granted, as the matter will be determined on its merits. 5.The respondent on the other hand maintains that the timelines for filing appeals from the Tax Appeals Tribunal are governed strictly by the Tax Procedures Act and the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015. It is argued that the Civil Procedure Rules are inapplicable. The respondent further submits that the delay of nearly one month is unjustified, and the reasons advanced, of work exigencies and mis-diarising, do not amount to sufficient cause. In their view, only grave circumstances such as illness or absence from the country could justify such delay. 6.Having weighed the rival positions, I am persuaded that the applicant has demonstrated sufficient cause for the delay. The delay of 18 days, though regrettable, is not inordinate in the circumstances. Courts have consistently held that mistakes of counsel or administrative lapses, while not to be encouraged, should not automatically shut the door of justice where the delay is short and excusable. In this case, I do note that the applicants sought to remedy the situation within a short time, which is indicative of their good faith. 7.The respondent’s argument that only illness or absence from the country can justify delay is too restrictive. The jurisprudence on extension of time recognizes that each case must be considered on its own facts. In this case, the explanation of mis-diarising and work exigencies, though not ideal, is plausible and does not suggest negligence or deliberate disregard of the law. 8.Further, the intended appeal raises issues around the interpretation of tax statutes and the proper treatment of cross-border transactions which go beyond the interests of the immediate parties. Taxation is a matter of profound public importance, as it directly affects the revenue base of the State and the obligations of taxpayers. The proper interpretation and application of tax statutes therefore carries implications for fairness, certainty, and accountability in the administration of public finance. In this regard, it is in the wider interests of justice that such issues be ventilated before this Court, so that clarity may be provided not only for the parties but also for the broader public and other taxpayers similarly situated. 9.On prejudice, the respondent has not demonstrated any specific prejudice that would be suffered if the extension is granted. The mere fact of facing an appeal cannot amount to prejudice, as litigation inherently involves the possibility of challenge. On the other hand, refusing the extension would permanently shut out the applicant from pursuing its statutory right of appeal. Disposition 10.Accordingly, the application dated 24th February 2026 is hereby allowed. The time for filing the Memorandum of Appeal is extended, and the Memorandum of Appeal filed in Commissioner of Customs & Border Control v. Unilever Kenya Ltd shall be deemed as properly filed before this Court upon payment of the requisite fees. The appeal shall proceed to hearing on its merits. I make no orders as to costs. DATED, SIGNED AND DELIVERED AT NAIROBITHIS 19TH DAY OF JUNE 2026.F. MUGAMBIJUDGEDelivered in presence of:Ms Onyango for Ms Malik for respondentJabala for applicantCourt Assistants: Lillian & Gloria