Cosmos Limited v Kenya Revenue Authority
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of failure to serve the letter bespeaking proceedings under rule 82(1)
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.
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.
Mistake of counsel and the need for a formal application for relief
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.
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.
Scope of Article 159(2)(d) and public interest
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.
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.
Legal principles established
#- 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
#- 1.The consolidated applications are allowed as prayed
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.