Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCourt of Appeal Application (extension of time) dated 16th August 2019· [2020] KECA 672 (KLR)

Kenya Revenue Authority-DCI KRA Unit & another v Google Kenya Limited & 4 others [2020] KECA 672 (KLR)

Court of Appeal of Kenya
8 May 2020
SKS. Gatembu Kairu
2,015 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused KRA extra time to serve its appeal notice against Google Kenya, because no satisfactory explanation was given for the delay.

What this practically means

#

Executive summary

#
This is a single-judge (S. Gatembu Kairu, JA) ruling of the Court of Appeal, Nairobi, delivered on 8th May 2020 on an application under Rule 4 of the Court of Appeal Rules. The applicants sought extension of time to file and serve a notice of appeal against a High Court judgment of 22nd October 2018 (Nyamweya, J) which quashed by certiorari a magistrate's warrant authorising investigation of a Gmail account, on the ground that the magistrate acted irrationally in issuing the order against Google Kenya Limited, which was not a party to the proceedings. The notice of appeal was lodged within 14 days under Rule 75(2), but was never served or was served late contrary to Rule 77(1), and the Rule 4 application itself was filed some four and a half months after the respondent's application to strike out the appeal. Applying the settled principles from the Salat (Supreme Court) and Fakir Mohamed authorities, the judge found the explanation for non-service unsatisfactory - the claim of inadvertence without more did not explain the delay - and no explanation at all was given for the delay in filing the application. The Kencell 'mistakes of counsel' principle did not avail absent a satisfactory explanation. The applicants' own ground (e) appeared to acknowledge the quashed order was wrongly directed at the respondent. The court declined to pronounce on the appeal's merits and dismissed the application with costs to the 1st respondent only, other parties not having participated.

Key legal issues

#
01

Whether the explanation for failure to serve the notice of appeal was satisfactory

Holding

The explanation was unsatisfactory: no evidence of service at all, and the characterisation of the omission as 'inadvertent' without more does not explain the delay

Reasoning

Having filed the notice on 25 October 2018, the applicants did not show why it was not served or why service awaited endorsement by the Deputy Registrar. The Kencell principle that mistakes of counsel should not be visited on a party does not avail where no satisfactory explanation is offered.

p. 3
02

Whether the delay of about four and a half months in filing the Rule 4 application was explained

Holding

No explanation whatsoever was offered for filing the application only on 26th August 2019

Reasoning

The application to strike out was filed on 3rd April 2019 and the present application was not lodged until 26th August 2019; the applicants offered no explanation at all for that period, weighing against extension.

p. 3
03

Timeliness of the notice of appeal and letter bespeaking proceedings

Holding

The notice of appeal dated 23rd October 2018 and the letter bespeaking proceedings were duly filed on 25th October 2018, within the 14-day period under Rule 75(2)

Reasoning

Judgment was delivered on 22nd October 2018, so the filing was within time under Rule 75(2). The letter was also copied to the respondent's advocates, as evidenced by their stamp. The defect lay in service, not lodging.

p. 2
04

Chances of the appeal succeeding

Holding

The court declined to decide, noting that the appellants' own grounds appeared to acknowledge the magistrate's order was wrongly directed at the respondent

Reasoning

Ground (e) of the application described the order against Google as an inadvertent error of the Chief Magistrate not contested by the applicants, suggesting the appeal's merits were weak; the court held it was not for it to decide that question.

p. 3

Legal principles established

#
  • Extension of time is an equitable remedy, not a right, granted at the court's discretion to a deserving party who must lay a basis and explain the delay to the court's satisfaction

Court orders

#
  1. 1.The application dated 16th August 2019 is declined and dismissed
  2. 2.Costs to the 1st respondent only, as the other parties did not participate in the motion

Authorities

#

Legislation

  • Criminal Procedure CodeSection 118
  • Criminal Procedure CodeSection 118A
  • Criminal Procedure CodeSection 121(1)
  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 75(2)
  • Court of Appeal RulesRule 77(1)

Cases cited (7)

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others
    Supreme Court Application No. 16 of 2014 [2014] eKLR
  • Fakir Mohamed vs. Joseph Mugambi & 2 others
    [2005] eKLR
  • Mutiso vs. Mwangi
    Civil Appl. NAI. 255 of 1997 (UR)
  • Mwangi vs. Kenya Airways Ltd
    [2003] KLR 486
  • Major Joseph Mwereri Igweta vs. Murika M’Ethare & Attorney General
    Civil Appl. NAI. 8/2000 (UR)
  • Murai v Wainaina (No 4)
    [1982] KLR 38
  • Commissioner of Income Tax vs. Kencell Communications Limited
    [2013] eKLR
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Revenue Authority-DCI KRA Unit & another v Google Kenya Limited & 4 others [2020] KECA 672 (KLR)", Case Analysis (2020). Court of Appeal Application (extension of time) dated 16th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/672/eng@2020-05-08

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