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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal (Application) No. 382 of 2017 (consolidated with Civil Appeal (Application) No. 383 of 2017)· [2019] KECA 70 (KLR)

Cosmos Limited v Kenya Revenue Authority

Court of Appeal of Kenya
20 December 2019
4,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out KRA's appeals because KRA missed appeal filing deadlines and failed to properly serve required documents — even government agencies must follow court rules.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Karanja and J. Mohammed, JJ.A) on consolidated interlocutory applications in Civil Appeal Nos. 382 and 383 of 2017, in which Cosmos Limited and Cooper (K) Brands Limited sought to strike out the notices of appeal and records of appeal filed by the Kenya Revenue Authority. The appeals challenged a High Court judgment of G.V. Odunga J delivered on 10th June 2016 in judicial review proceedings concerning tax assessments. KRA filed notices of appeal timeously but, by its own concession, failed to serve on the applicants the letter bespeaking typed proceedings. Its records of appeal were lodged on 15th November 2017, over seventeen months after the notices of appeal. The court held that the proviso to rule 82(1) of the Court of Appeal Rules, which allows the certificate of delay to extend the sixty-day filing period, is available only to a party who applied for typed proceedings within thirty days and served the bespeaking letter on the opposite party. KRA's default therefore disentitled it from relying on the certificate of delay, and the appeals were filed out of time without leave. The court further held that a litigant seeking to be excused from non-compliance must do so by a formal application, not a replying affidavit and submissions; that a government agency enjoys no special privileges regarding procedural compliance; and that Article 159(2)(d) is not a panacea for procedural shortfalls. The consolidated applications were allowed as prayed, striking out the appeals, with costs to the applicants. The underlying High Court judgment was not disturbed; this ruling binds subordinate courts and the High Court on the conditions for invoking the proviso to rule 82(1).

Key legal issues

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01

Effect of failure to serve the letter bespeaking proceedings under rule 82(1)

Holding

The respondent, having failed to copy the letter bespeaking proceedings to the applicants, could not invoke the proviso to rule 82(1) or rely on the certificate of delay; the appeals filed over seventeen months after the notice of appeal were filed outside the prescribed time and without leave.

Reasoning

Rule 82(1) requires the record of appeal to be lodged within sixty days of the notice of appeal. The proviso extends this only where typed proceedings were applied for within thirty days and the bespeaking letter was served on the opposite party. The respondent conceded inadvertent non-service, so the sixty-day period applied unextended. The record filed 15th November 2017 was therefore out of time and incompetent absent a validating order, exposing it to being struck out.

p. 3
02

Mistake of counsel and the need for a formal application for relief

Holding

Although the failure to serve the bespeaking letter was attributable to the advocate, whether it is excusable depends on the circumstances, and the respondent could not obtain relief through a replying affidavit and submissions alone; a formal application for extension of time was required.

Reasoning

The court acknowledged the line of authority that a litigant should not suffer for an advocate's oversight, but held that those principles are invoked through a formal application demonstrating entitlement to discretionary relief. The respondent filed only a replying affidavit and made no cross-application for extension of time, unlike in its sister appeal. The discretionary jurisdiction must be exercised judiciously, on sound reasons, and the respondent failed to discharge the burden of justifying excusal.

p. 4
03

Scope of Article 159(2)(d) and public interest

Holding

Article 159(2)(d) does not excuse non-compliance where a clear statutory procedure exists, and the public interest in revenue collection did not outweigh the applicants' right to enjoy the fruits of their judgment.

Reasoning

The court surveyed case law on the override-machinery clause, concluding that rules of procedure are meant to be obeyed, and that Article 159(2)(d) is not a panacea for procedural shortfalls. A government agency has no special privileges in compliance. Excusing the default would countenance an appeal filed without leave and undermine the timeliness embedded in the appellate rules.

p. 4

Legal principles established

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  • A party is only entitled to the extended computation of time in the proviso to rule 82(1) if it applied for typed proceedings within thirty days AND served the letter bespeaking proceedings on the opposite party; failure of service removes the benefit of the certificate of delay.
  • A litigant seeking to be excused from non-compliance with procedural rules must seek relief by way of a formal application, expressly stating the default and the basis for excusal; a replying affidavit and submissions are insufficient.
  • The State or a government agency enjoys no special privilege in matters of compliance with rules of procedure and stands on equal footing with any other litigant.
  • Article 159(2)(d) is not a panacea for all procedural shortfalls and does not confer authority to derogate from express statutory procedures.

Court orders

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  1. 1.The consolidated applications are allowed as prayed
  2. 2.The record of appeal (and notices of appeal) lodged by the respondent in Civil Appeal Nos. 382 of 2017 and 383 of 2017 are struck out / the reliefs sought in the applications are granted
  3. 3.Costs of the applications awarded to the applicants
On appeal from
High Court of Kenya at Nairobi
Constitutional & JR Misc. Civil Appl. No. 478 of 2013 (also referenced as Misc. Application No. 458 of 2013)
Jurisdiction invoked
Inherent discretionary jurisdiction of the Court of Appeal under the Court of Appeal Rules (rules 82(1) and 83) in an interlocutory application to strike out the notices of appeal; Article 159(2)(d) of the Constitution invoked by the respondent

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cosmos Limited v Kenya Revenue Authority", Case Analysis (2019). Civil Appeal (Application) No. 382 of 2017 (consolidated with Civil Appeal (Application) No. 383 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/70/eng@2019-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.