Kenya Revenue Authority v Oyuko (Civil Application E046 of 2026) [2026] KECA 1433 (KLR) (10 July 2026) (Ruling)

Kenya Revenue Authority v Oyuko (Civil Application E046 of 2026) [2026] KECA 1433 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1433 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Civil Application E046 of 2026 B Ongaya, JA July 10, 2026 Between Kenya Revenue Authority Applicant and Daniel Okonda Oyuko Respondent (Being an application for enlargement of time to file and serve Notice of Appeal and Record of Appeal out of time against the Judgment of the Employment & Labour Relations Court at Kisumu (Dr. Gakeri, J.) dated 21st January, 2026 in ELRC Cause No. E052 OF 2025) Ruling 1.The applicant filed the notice of motion dated 9th March, 2026 under Rules 4 and 42 of the Court of Appeal Rules, seeking the following orders:1.…(Spent)2.That the time be extended for the applicant within which to file a notice of appeal against the Judgment dated 22nd January 2026.3.That the time be extended for the applicant within which to file and serve the record of appeal as the same will have expired by the time this application is heard and determined.4.That costs of and incident to this application be costs in the appeal. 2.The application is premised on grounds set out therein and supported by the affidavit of Victor Andambi Chabala Advocate, sworn on 9th March, 2026. The applicant’s counsel admitted that, despite timely advice to his client regarding the ELRC’s findings, counsel inadvertently failed to ascertain the applicant’s instructions on the way forward, thereby causing the time to file an appeal to expire. He asserted that the delay was an excusable oversight by counsel and not premeditated. That the intended appeal is arguable and has a high chance of success, and that KRA would be significantly prejudiced if denied the opportunity to prosecute the appeal. He noted that the KRA had issued instructions to appeal and requested certified copies of the proceedings and judgment as of 3rd March, 2026. He thus requested an extension of time to file the necessary appeal documents in the interest of justice. 3.The respondent filed a replying affidavit sworn on 17th March, 2026. Opposing the application, he averred that the ELRC delivered judgment in his favour on 21st January, 2026 and then granted the applicant a stay of execution for 30 days, which has since lapsed. He asserted that the claim regarding counsel for the applicant’s failure to follow up with their client is not backed by any proof. The respondent attached copies of emails sent by his advocates on 6th and 18th February, 2026, and a formal letter dated 21st February, 2026, notifying the applicant of the judgment and the need to pay the decretal amount so as to avoid execution. He maintained that the applicant was consistently reminded of the lapse of the stay of execution. Subsequently, the respondent prayed for dismissal of the instant application with costs to the respondent, and that should the Court be inclined to grant a stay of execution, it should order as follows:a.That the applicant releases a sum of Kshs. 73,214.30 being the salary for 10 days in June 2024 to the respondent within 7 days.b.That the applicant deposit Ksh. 615,000 into a joint interest-earning account in the names of both advocates on record within 7 days. 4.This application was listed before me on 30th June, 2026 as a chamber matter in the absence of the parties or their advocates for consideration and determination on the basis of the parties’ respective written submissions. 5.The applicant filed submissions dated 22nd March, 2026, asserting that the application was filed on 9th March, 2026, approximately 34 days after the deadline for filing the notice of appeal. They argued that the delay was primarily due to internal organisational processes required to decide whether to appeal the Judgment, particularly regarding the finding that the termination of the respondent’s employment was procedurally unfair. It was urged that denying the application would be prejudicial, as the trial court’s decision could negatively impact the applicant’s future disciplinary proceedings. That, on the other hand, the respondent will have the opportunity to present his case during the appeal and will therefore not be prejudiced. The applicant submitted that, in determining whether there is an inordinate delay, the focus should be on whether the justification and reasons are rational and plausible. They cited Karani v Judicial Service Commission (Petition 3 of 2021) [2022] KESC 37 (KLR), in which the Supreme Court held that a court interrogating whether a delay is justifiable and thus excusable must interrogate the circumstances of the case. 6.The respondent filed submissions dated 21st March, 2026. On the enlargement of time to appeal, the respondent urged that the applicant’s reasons for delaying the appeal are invalid and insufficient. He contended that the applicant is attempting to prevent the respondent from enjoying the fruits of their judgment. Relying on the case of Imperial Bank Ltd (in receivership) and another v Alnasir Popat & 18 others [2018] eKLR, as cited in Ngei v Kibe & another (Civil Appeal (Application) E359 of 2021) [2021] KECA 243 (KLR), the respondent noted that the court considers factors such as the length of delay, reasons for delay, and potential prejudice when exercising its discretion to extend time. 7.I have considered the parties' arguments and submissions. The discretion for extension of time is provided for under Rule 4 of the Court of Appeal Rules. In the case of Leo Sila Mutiso v Hellen Wangari Mwangi [1999] 2 EA 231 the Court laid down the parameters to be considered in an application for extension of time as follows;“It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are: first the length of the delay, secondly, the reason for the delay; thirdly (possibly) the chances of the appeal succeeding if the application is granted; and, fourthly, the degree of prejudice to the respondent if the application is granted.” 8.On the length of the delay, the impugned judgment was delivered on 21st January, 2026. The application is dated 9th March, 2026. Under rule 77(2) of the Court of Appeal Rules, the applicant was required to lodge the notice of appeal within fourteen days after 21st January, 2026 and the 14 days were lapsing on or about 4th February, 2026. It is about 33 days from the date the notice of appeal ought to have been filed to the date of the instant application for extension of time. The delay spans slightly over a month. Whether it is excusable will require the applicant to show a robust credible explanation. 9.To explain the delay in lodging the notice of appeal by 4th February, 2026, paragraph 5 of the supporting affidavit states that despite timely advise to the applicant about the judgment delivered on 21st January, 2026, the applicant inadvertently failed to do a follow up to ascertain its client’s instructions on the way forward until the time for filing a notice of appeal had lapsed. It is not clear why the applicant being the party to the proceedings would be seeking instructions from “its client”. In a further confusing explanation of the delay, it is stated at paragraph 6 of the supporting affidavit as follows;“That the applicant has since issued instructions to appeal against the judgment by the Employment Court that was delivered by Justice Jacob Gakeri on 3rd March 2026.” 10.From the foregoing purported reason for the delay, it is apparent that the applicant is not coherent and consistent in stating the circumstances of the delay but gives misleading information about the giving of instructions to appeal, the persons involved, and the decision proposed to be appealed against. Further confusion and inconsistency can be inferred from prayer 2 of the application which seeks extension of time within which the applicant is to file a notice of appeal against the judgment dated 22nd January, 2026. The applicant while purporting to set up a reason that the delay was due to inadvertence by counsel as per ground (b) of the application, it turns out that the incoherence and inconsistency establishes no good reason for the delay. The submission made for the applicant that the delay was primarily due to internal organisational processes required to decide whether to appeal the judgment, particularly regarding the finding that the termination of the respondent’s employment was procedurally unfair is found not based upon the grounds in the application and the supporting affidavit. 11.The upshot is that the applicant has failed to provide candid, plausible and consistent explanation for exercise of the discretion to extend time in its favour. The respondent’s assertion that the claim regarding counsel for the applicant’s failure to follow up with their client is not backed by any proof is found valid. Further, the submission for the respondent that the applicant’s reasons for delaying the appeal are invalid and insufficient is well founded. The purported reason for the delay being vague and without concrete facts or dates fails to amount to a sufficient reason for extension of time as was prayed. 12.The applicant has urged that there exist grounds of appeal such as that the ELRC erred in finding that the termination was procedurally unfair under section 45(5) of the Employment Act for failure to avail minutes of disciplinary proceedings during the hearing while the minutes were never sought for by the respondent; and, that the applicant is aggrieved by the finding that it failed to evidentiary demonstrate that the procedure it employed in termination the respondent’s employment met the threshold of section 41 and section 45(2) (c) of the Employment Act when the issue was never pleaded and did not form part of the issues for determination. However, consideration of these grounds and the chances of the proposed appeal succeeding would aid the applicant only if the applicant has established a satisfactory reason for the delay but which the applicant has failed to do in the present application. 13.Hence, even if the delay period was relatively short of about 33 days and with plausible grounds of appeal, the applicant’s lack of a credible or sufficient reason to explain the delay as is overridden with the respondent’s case that the application is merely calculated to delay the enjoyment of the fruits of his successful litigation at the ELRC. 14.In the premises, the application is hereby dismissed with costs for the respondent. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.B. ONGAYA............................... JUDGE OF APPEALI certify that this is a true copy of the original.SignedDeputy Registrar