BARCLAYS BANK OF KENYA LIMITED vs COMMISSIONER GENERAL & ANOTHER [1998] KECA 187 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that KRA cannot get extra time to appeal just because its own offices were disorganised.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court judge erred in extending time for the Commissioner to file a memorandum of appeal out of time under rule 3 of the Income Tax (Appeals to the High Court) Rules
- 2.Whether 'other reasonable cause' in rule 3 extends to bureaucratic incompetence or administrative disorganisation within the Commissioner's offices
- 3.Whether the public importance of a matter or the large value of revenue at stake can justify an extension of time under rule 3
- 4.Whether the shortness of the delay (seven days) is a relevant consideration in an application under rule 3
Key legal issues
#Whether 'other reasonable cause' under rule 3 extends to bureaucratic incompetence
It does not; the words must be construed ejusdem generis with absence from Kenya and sickness, which connote a physical impediment, and internal disorganisation within the Commissioner's offices does not qualify.
The court adopted the reasoning in Northern Province Labour Utilisation Board that 'other reasonable cause' should be read ejusdem generis with absence from the territories and sickness, both of which connote physical impediment. The Commissioner's missing file, the delay in preparing a brief and the unavailability of an authorised officer were matters of internal disorganisation, not physical impediment. The court held that the respondent could show no reasonable cause preventing the appeal from being filed in time.
Whether public importance or the large value of revenue at stake justifies extension of time
Neither the substantial amount of tax involved nor the incompetence-driven loss of revenue constitutes an important point of law or other reasonable cause under rule 3.
The High Court had relied on Esso Standard Eastern Inc. v Income Tax, where extension was granted because the case involved points of public importance. The Court of Appeal distinguished that case, holding that here no important point of law of fundamental importance was at issue; the mere fact that large sums due to Government might go uncollected through incompetence is not a point of law needing definition nor sufficient reason to extend time.
Whether the brevity of the delay (seven days) excuses non-compliance
No; where the period for presenting a memorandum of appeal is fixed by statute, the length or shortness of the delay is irrelevant.
The court rejected the argument that a seven-day delay was too short to fault the judge, citing Madan, J. in Sardah M. M. Shroff v The Commissioner of Income Tax that in the context of statutory limitation the length or shortness of the delay is irrelevant. The statutory period must be met unless the rule 3 conditions are satisfied.
Legal principles established
#- In an application under rule 3 of the Income Tax (Appeals to the High Court) Rules, matters not amounting to something which physically impedes an intending appellant from preferring the appeal should not be taken into account; bureaucratic incompetence is not 'other reasonable cause'.
- The length or shortness of the delay is irrelevant where the period for filing is fixed by statute.
- The large amount of tax claimed by the Government is not a sufficient ground to justify an extension of time under rule 3.
- A court cannot cure deficiencies in statutory drafting, including provisions that weigh heavily against the Commissioner as a litigant.
Court orders
#- 1.The appeal is allowed
- 2.The ruling and order of the superior court dated 11th December 1997 is set aside save for the order for costs
- 3.The appeal to the High Court filed pursuant to the extension of time granted by the superior court is struck out
- 4.The respondent shall pay the appellant's costs of this appeal as well as costs of the appeal filed in the High Court by the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.MISC. (Income Tax) APPL. NO. 514 OF 1997
- Jurisdiction invoked
- First appeal to the Court of Appeal against a ruling of the High Court in an income tax extension-of-time application under the Income Tax Act (Cap 470) and the Income Tax (Appeals to the High Court) Rules
Relief refused
#The Commissioner's extension of time to file the memorandum of appeal
No reasonable cause under rule 3 was shown; the delay was caused by internal disorganisation and incompetence, and the large sums of revenue at stake do not constitute other reasonable cause
Costs
The respondent shall pay to the appellant its costs of this appeal as well as costs of the appeal filed in the High Court by the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For these reasons we allow the appeal. The ruling and order of the superior court dated 11th December, 1997, is set aside save for the order for costs.
The appeal to the High Court filed pursuant to the extension of time granted by the superior court is hereby ordered struck out.
The respondent shall pay to the appellant its costs of this appeal as well as costs of the appeal filed in the High Court by the respondent.
In the context of statutory limitation, the length or shortness of the delay is irrelevant.
The court cannot aid the legislature's defective phrasing of the Act neither can it add, mend or make up deficiencies which are inherent in it.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BARCLAYS BANK OF KENYA LIMITED vs COMMISSIONER GENERAL & ANOTHER [1998] KECA 187 (KLR)", Case Analysis (1998). Civil Appeal No. 67 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/187/eng@1998-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.