Kenya Revenue Authority v Tradewise Agencies Limited & Consolidated Bank of Kenya [2014] KECA 788 (KLR)
The bottom line
#Kenya's Court of Appeal refused KRA extra time to appeal because the delay was unexplained and backed by a false affidavit.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the Notice of Appeal was sufficiently explained
No - the account given by the court clerk was disbelieved; no copy of the allegedly prepared Notice of Appeal was annexed, and the only Notice of Appeal on record was dated 25th September 2013, well outside the time limit.
The clerk claimed a Notice of Appeal was handed to him by the advocate on record on 14th August 2013 for filing, but no such Notice was annexed and the advocate was not identified. The only Notice on record was dated 25th September 2013 and signed by Mr. Nyaga. The Court concluded the affidavit was contrived, that the clerk was not candid and concealed material facts, and that no reliance could be placed on it.
Whether an affidavit sworn by a court clerk rather than the advocate on record can properly invoke the Court's Rule 4 discretion
The Court agreed with the 1st respondent that the advocate on record, with conduct of the case, should have sworn the supporting affidavit; his failure to do so left the existence of the earlier Notice of Appeal in doubt and the delay unexplained.
The Court accepted the submission that the supporting affidavit should have been sworn by the advocate on record, not by a clerk. Mr. Nyaga made no attempt to explain why he chose to have the clerk swear the affidavit instead. Because of that failure, the delay was unexplained and there was no proper basis upon which the Court could exercise its discretion in the applicant's favour.
Legal principles established
#- The discretion to extend time under Rule 4 is unfettered but must be exercised on sound reason, not on whim, caprice or sympathy.
- A party seeking the favourable exercise of the Court's discretion under Rule 4 must place material before the Court that adequately informs the exercise of that discretion.
- The primary objective of Rule 4 is to ensure that litigants with apparently good appeals who manifest an intention to appeal and have not been lax or slothful are not shut out of the Court of Appeal.
Court orders
#- 1.The Notice of Motion dated 23rd October, 2013 seeking extension of time is dismissed
- 2.Costs of the application awarded to the 1st respondent (Tradewise Agencies Limited)
- 3.The 2nd respondent is denied costs as it filed no papers and made no submissions
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (extension of time)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Republic v Kenya Revenue Authority Ex Parte Professor Tom Odhiambo Ojienda SC T/A Prof. Tom Ojienda & Associates[2018] KEHC 9104 (KLR)11 May 2018
- Republic v Kenya Revenue Authority Ex Parte Professor Tom Odhiambo Ojienda[2017] KEHC 9596 (KLR)15 Nov 2017
Cite this brief
#Cite this brief
Caselaw, "Kenya Revenue Authority v Tradewise Agencies Limited & Consolidated Bank of Kenya [2014] KECA 788 (KLR)", Case Analysis (2014). Notice of Motion dated 23rd October, 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/788/eng@2014-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.