Fintel Limited v Kenya Revenue Authority (Civil Application 8 of 2019) [2023] KECA 1654 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed an application to extend time for appeal because the applicant never explained a 74-day delay in filing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has offered a plausible explanation for the 74-day delay in filing the application for extension of time
- 2.Whether the applicant was required to obtain leave or certification before filing a notice of appeal to the Supreme Court
- 3.Whether the discretion to extend time should be exercised in the applicant's favour
Key legal issues
#Explanation for delay as the threshold condition for extension of time
The applicant, whose affidavit did not address the 74-day delay, failed to meet the threshold; the discretion was therefore not exercised in its favour.
The court restated the settled principles from Leo Sila Mutiso, Muringa Company, Chemaringo and Salat: length of delay, reason for delay, chances of success and prejudice to the respondent. The applicant's supporting affidavit did not explain the delay at all, and the only ground offered - that leave was needed before filing a notice of appeal - was factually and legally wrong. A successful litigant is entitled to finality and enjoyment of the fruits of justice.
Whether leave or certification was a prerequisite to filing a notice of appeal to the Supreme Court
It is not correct that leave of the Court of Appeal is required before filing a notice of appeal; rule 36(4) of the Supreme Court Rules makes certification non-mandatory at that stage.
The applicant had relied on rule 30 of the Supreme Court Rules, which concerns execution and is irrelevant, whereas the applicable provision is rule 33 on certification and rule 36(4). Rule 36(4) expressly states that certification is not mandatory before lodging a notice of appeal on a matter of general public importance. The mistaken premise destroyed the applicant's only proffered reason for the delay.
Legal principles established
#- Extension of time is a discretionary, equitable remedy and the duty to explain any delay rests squarely on the applicant; a court will not condone indolence.
- Where an appeal lies to the Supreme Court on a matter of general public importance, certification is not mandatory before filing the notice of appeal.
Court orders
#- 1.Dismissal of the application on the question of extension of time
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 55(1) and rule 4 of the Court of Appeal Rules (single Judge jurisdiction over extension of time); Articles 10, 20(3), 25(c), 159(2)(a)(d)(e), 163(4)(b) and 259(1) of the Constitution; section 15(1) of the Supreme Court Act; sections 3A and 3B of the Appellate Jurisdiction Act cited by the applicant
Relief refused
#Extension of time for filing a notice of appeal and leave to appeal out of time to the Supreme Court
No plausible or reasonable explanation was given for the 74-day delay; the applicant's assertion that leave was required before filing a notice of appeal was incorrect
Costs
The application on extension of time was dismissed with costs (costs awarded to the respondent).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the application on the question that is before me, that is extension of time has no merit and I dismiss it with costs. It is so ordered.
a Court of law should not condone indolence or inaction as the sword of justice cuts both ways. A successful litigant is entitled to finality and a chance to enjoy the fruits of justice, just as an unsuccessful party is entitled to a right of appeal.
The duty to advance the reasons for the delay rests squarely on the applicant.
Issues in the judgment
#The judgment refers to the Supreme Court Rules 2020 and to rule 33, but earlier the applicant's motion invoked 'Rule 33 of the Supreme Court Rules' while the court quotes rule 30 and notes its irrelevance; the numbering/version of the rules relied on is internally inconsistent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fintel Limited v Kenya Revenue Authority (Civil Application 8 of 2019) [2023] KECA 1654 (KLR)", Case Analysis (2023). Nairobi Civil Appeal No. 311 of 2015 (omnibus application on extension of time). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1654/eng@2023-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.