https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1535

Chemben & 92 others v Kenya Revenue Authority (Civil Appeal E267 of 2020) [2026] KECA 1535 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1535 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal E267 of 2020 JM Mativo, P Lilan & JO Okello, JJA July 31, 2026 Between Moses Chesti Chemben & 92 others Appellant and Kenya Revenue Authority Respondent (Being an appeal against the Ruling of the Employment and Labour Relations Court at Nairobi (Wasilwa J) dated 28th May 2020 in ELRC Constitutional Petition No.79 of 2015) Judgment 1.This appeal arises from the ruling delivered by the Employment and Labour Relations Court at Nairobi (Wasilwa J) on 28th May 2020 in ELRC Constitutional Petition No. 79 of 2015, in which the Court dismissed the appellant’s application for leave to appeal out of time. 2.A brief history of the matter leading up to the dismal is as follows: the appellants herein filed ELRC Petition No. 79 of 2015 seeking several reliefs from the Employment and Labour Relations Court (ELRC), including severance pay at a rate of 3 months’ basic salary for every year served, unpaid transport, medical, and house allowances, and payment for long service bonuses for those who worked over 15 years and outstanding increments and promotions. 3.The petition was heard and dismissed by Wasilwa, J. vide a judgment dated 30th May 2018. Aggrieved by that judgment of May 2018, the appellants filed a Notice of Appeal on 8th October 2018 and eventually filed an application for enlargement of time to appeal the decision on 18th April 2019. The ELRC heard the application and dismissed the same on 28th May 2020, finding the delay of over one year to be inordinately too late and without a plausible reason. 4.Aggrieved, the appellants filed this instant appeal, citing the following five grounds;i.The learned judge erred in law and in fact by failing to find that the applicants had satisfied the well-established requirements of the law for the granting of leave to appeal out of time.ii.The learned judge erred in law and in fact by ignoring the evidence on record and finding that the application was filed a year down the line, whereas the appeal process started three months later.iii.The learned judge erred in law and in fact by ignoring the arguments of the applicant and making a decision that could not be supported by the evidence on recordiv.The learned judge erred in fact and in law in her appreciation and application of the law of enlargement of time and resorting to a decision that failed to appreciate the burden of proof applicable on a balance of conveniencev.The learned judge erred in fact and in law in her appreciation and application of the law on enlargement of time and resorting to a decision that failed to appreciate the burden of proof applicable on a balance of conveniencevi.The learned judge erred in law and in fact by failing to apply herself to the matter at hand and delivering a ruling that did not address the arguments and evidence on record. 5.We heard this appeal virtually on 17th March 2026. Learned counsels Ms. Metto appeared for the appellants, and Mr. Kipkurui appeared for the respondent. Parties relied on their written submissions without highlights. 6.In their written submissions, the appellants argue that the trial court exercised its discretion improperly by failing to consider the justifications provided for their delay in filing their appeal. The appellants contend that they were not in court when the May judgment was delivered and that they were not informed of the outcome by their previous advocates for several weeks. 7.On the delay, the appellants submit that it was compounded by the difficulty of building consensus among 93 elderly and disparate members and the time required to raise legal fees. They have cited the case of Republic v General appearing for the Minister in Charge of Roads, Government of Kenya &another; Ex parte: Nyoro Construction Company Limited [2021] eKLR 8.The appellants fault the trial court for the finding that the length of the delay exceeded one-year. They submit that the appeal process commenced only two months after the judgment, following their request for proceedings, which was made on 1st August 2018, and thereafter filing their notice of appeal on 8th October 2018. 9.The appellants attribute the delay to the mistake of counsel and submit that the same should not be visited upon litigants. They have cited the case of Philip Keipto Chemwolo & Another v Augustine Kubende [1986] eKLR and Moroo Polymers Limited v Wilfred Kasyoki Willis [2019] eKLR,. 10.They have sought the discretion of this court and placed reliance on the case of LSG Lufthansa Service Europa/Afrika GmBH & Another v Eliab Muturi Mwangi (Practicing in the name and style of Muturi Mwangi & Associates Advocates) [2019] eKLR. 11.On its part, the respondent submits that the trial court exercised its discretion correctly, as the appellants failed to justify the delay of over 11 months in filing their application for enlargement of time. The respondent cited the case of County Executive of Kisumu v County Government of Kisumu & 8 others [2017] eKLR and Maree Ahmed & another v Leli Chaka Ndoro [2017] eKLR, stating that delays in obtaining proceedings or judgments are not automatic "panaceas" for extensions. 12.The respondent submits that solely blaming an advocate is an insufficient reason for such a delay, and that the appellants have demonstrated persistent indolence by failing to check the status of their own case for nearly a year. The respondent highlights that the appellant’s request for proceedings in August 2018 was never served upon them, and cannot be relied upon to mitigate the time overran. The respondent cited the cases of Samuel Gathu Kamau v Peter Kaniu Gathungu [2006] eKLR, Leonard Oseme Karani v Sunflag Textile & Knitwear Mills Limited [2019] eKLR, Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others [2015] eKLR, and Habo Agencies Limited vs Wilfred Odhiambo Musingo [2015] eKLR. 13.Furthermore, the respondent submits that granting an extension would cause it immense prejudice, as it is a government institution guided by annual budgets, and it has already closed issues related to this litigation. 14.This being a first appeal, our mandate as a first appellate court is well-established as being a rehearing or retrial of the case based on the material on record. This duty is well defined in Rule 31(1) (a) of the Court of Appeal Rules [2022), which requires this Court to re-examine both issues of law and fact. While this Court has the power to arrive at our own independent conclusions, we must exercise restraint and be slow to overturn a trial court’s findings of fact because we did not have the advantage of seeing or hearing the witnesses. (See Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR). 15.Rule 31(1) (a) of the Court of Appeal Rules (2022) requires this Court to re-examine both issues of law and fact. However, despite this broad mandate, we are alive to the fact that the trial judge had the unique advantage of observing witness behavior and credibility first-hand. Therefore, we will only overturn a trial court’s factual finding if it is shown to be clearly wrong or if the judge failed to consider material circumstances or probabilities. (See Ongwen & 5 Others vs. Omollo & 6 Others [2023] KECA). 16.We have considered the appeal and submissions by the parties. The only issue for consideration in our view is what to make of the explanations given by the appellants - was it plausible as to excuse the delay? - and whether the court got it wrong in finding that the delay in filing application for extension of time was inordinate. 17.The application before the ELRC, being a court of equal status with the High Court, was governed by section 7 of the Appellate Jurisdiction Act, which provides that;“The High Court may extend the time for giving notice of intention to appeal from a judgment of the High Court or for making an application for leave to appeal or for a certificate that the case is fit for appeal, notwithstanding that the time for giving such notice or making such appeal may have already expired…” 18.In any application for extension of time to file an appeal, the principal consideration would be the reasons for the delay in filing the appeal, and whether the delay in filing the appeal was reasonable. In this case, the labour court’s decision was rendered on 30th May 2018. A notice to appeal was filed on 8th October 2018. Under rule 75 of the Court of Appeal Rules, a notice of appeal ought to be filed within fourteen days of the impugned decision, which meant that it was lodged out of time. Curiously, there was no prayer for the extension of time to lodge the same. 19.The appellants have then faulted the ELRC for indicating that the day was for over one year, stating that the delay was only for two months. They have defended this position by submitting that they lodged their letter for requesting proceedings on 1st August 2018. The appellants cannot, however, rely on this submission for procedural lapses; firstly, their notice of appeal was lodged out of time. Secondly, the letter was not served upon the respondent as required under Rule 82 (2) of the Court of Appeals 2010 (now Rule 84 (2) of Court of Appeal Rules 22), which provides;“Provided that where an application for a copy of the proceedings in the superior court has been made in accordance with sub-rule (2) within thirty days after the date of the decision against which it is desired to appeal, there shall, in computing the time within which the appeal is to be instituted, be excluded such time as may be certified by the registrar of the superior court as having been required for the preparation and delivery to the appellant of such copy.An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless his application for such copy was in writing and a copy of it was served upon the respondent.” 20.The total delay was therefore 10 months and 19 days and not two months as the appellant claims. 21.The Supreme Court pronounced itself on the question of extension of time in the case of Andrew Kiplagat Chemaringo vs. Paul Kipkorir Kibet [2018] eKLR, where it stated as follows:“The law does not set out any minimum or maximum period of delay. All it states is that any delay should be satisfactorily explained. A plausible and satisfactory explanation for delay is the key that unlocks the court’s flow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.” 22.Has a plausible explanation been given for the delay in filing the appeal? We do not think so. The appellants are passing all the blame to their counsel for the failure. This Court in Bi-Mach Engineers Limited vs. James Kahoro Mwangi [2011] eKLR, reiterated the duty of a litigant to follow up on instructions given to an advocate. It stated:“The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up on the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy.” 23.We find that the delay was not sufficiently explained and find no reason to fault the decision of the trial court. The appeal is dismissed. We, however, consider the matter that was before the trial court, being a labour relations dispute, each party shall bear the costs of this appeal. 24.Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026J. M. MATIVO…………………………JUDGE OF APPEALPAUL LILAN…………………………JUDGE OF APPEALDR. J.O. OKELLO………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR