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Court of AppealAllowedCivil Appeal (Application) 383 of 2018· [2022] KECA 1258 (KLR)

Althaus Management & Consultancy Limited v Kenya Revenue Authority

Court of Appeal
7 November 2022
LKL K Kimaru
745 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal gave a company nine extra days to file its tax appeal, showing short, honestly explained delays can be forgiven.

What this practically means

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Executive summary

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The applicant, Althaus Management & Consultancy Limited, sought extension of time under rule 4 of the Court of Appeal Rules to lodge and serve its notice of appeal and record of appeal against a High Court ruling (Odunga, J., dated 5 February 2018) declining to cite a Kenya Revenue Authority officer for contempt. The applicant filed its notice of appeal on time and applied for certified proceedings, but its advocate was misled by a clerk into believing the proceedings were not ready; by the time the error was discovered, the sixty-day period had lapsed, and the record was filed nine days late. The application was unopposed. Kimaru, JA, applying the factors in Fakir Mohammed v Joseph Mugambi, held that the court's rule 4 discretion is unfettered and guided by relevant but non-exhaustive factors. The nine-day delay was not inordinate and the explanation was excusable, though the court observed it would have been preferable for the second clerk to swear a supporting affidavit. Leave was granted to lodge and serve the notice of appeal and record of appeal within thirty days, with no orders as to costs since the application was unopposed. This is a single-judge interlocutory ruling of the Court of Appeal; it binds subordinate courts and High Courts on the exercise of the rule 4 discretion but does not disturb the High Court's contempt ruling, which remains pending appeal.

Key legal issues

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01

Extension of time to file record of appeal

Holding

A nine-day delay, explained by an advocate's reliance on false information from a court clerk, is excusable and not inordinate; extension granted.

Reasoning

The court applied the Fakir Mohammed factors: the delay of nine days was short, the explanation (clerk misled the advocate about typed proceedings) was excusable, the application was unopposed, and no prejudice to the respondent was shown. The court noted it would have been ideal for the second clerk to swear an affidavit but this did not defeat the application.

p. 2

Legal principles established

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  • Under rule 4 of the Court of Appeal Rules, the court has unfettered discretion to extend time, guided by relevant but not exhaustive factors including delay, reasons, chances of success and prejudice.

Court orders

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  1. 1.Leave granted to lodge and serve the notice of appeal and the record of appeal
  2. 2.Notice of appeal and record of appeal to be filed and served within thirty (30) days
  3. 3.No orders as to costs
On appeal from
High Court of Kenya
Nairobi Misc. Civil Application No. 393 of 2014
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (unlimited discretion to extend time)

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, "Althaus Management & Consultancy Limited v Kenya Revenue Authority", Case Analysis (2022). Civil Appeal (Application) 383 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1258/eng@2022-11-07

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