Moses Chesti Chemben & 92 Others v Kenya Revenue Authority
The bottom line
#The Court of Appeal refused 93 former employees more time to appeal because waiting ten months without chasing their lawyer is not excusable.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay in filing the application for extension of time was plausibly explained
It was not; the delay of 10 months and 19 days was attributed solely to counsel while the litigants never followed up on their case, which is not an excusable mistake.
The court measured the true delay from the ELRC judgment of 30th May 2018 to the application of 18th April 2019, rejecting the appellants' claim of a two-month delay because their notice of appeal was itself filed out of time and their request for proceedings was never served on the respondent as required by the Court of Appeal Rules. Following Bi-Mach Engineers, the duty to pursue one's advocates rests on the litigant, so counsel's inaction could not excuse the delay.
The applicable principles on extension of time to appeal
The principal consideration is the reason for the delay and whether it is reasonable; a plausible and satisfactory explanation unlocks the court's discretionary favour.
The court adopted the Supreme Court's statement in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet that the law sets no minimum or maximum period of delay but requires satisfactory explanation, with valid and clear reasons upon which discretion can be favourably exercised. Applied here, the appellants' explanations of consensus-building among 93 members, raising legal fees and counsel's mistake fell short.
The duty of a first appellate court
A first appeal is a rehearing on both law and fact, but the appellate court will be slow to overturn factual findings because it did not see or hear the witnesses.
Under Rule 31(1)(a) of the Court of Appeal Rules (2022) the Court must re-examine issues of law and fact and may reach its own conclusions, but it exercises restraint, overturning a trial court's factual finding only where it is clearly wrong or where material circumstances or probabilities were ignored, citing Gitobu Imanyara and Ongwen v Omollo.
Legal principles established
#- A litigant has a duty to follow up with his advocates on the progress of litigation, and simply blaming an advocate's inaction is not an excusable mistake entitling the litigant to extension of time.
- There is no minimum or maximum period of delay prescribed by law; what is required is a plausible and satisfactory explanation for the delay, which is the key to the exercise of the court's discretion.
- An appellant cannot rely on the proviso excluding time taken to prepare proceedings unless the application for the copy of proceedings was in writing and served upon the respondent.
Court orders
#- 1.The appeal is dismissed
- 2.Each party shall bear the costs of this appeal
- On appeal from
- Employment and Labour Relations Court, Nairobi
- ELRC Constitutional Petition No. 79 of 2015 (Ruling of 28th May 2020)
- Jurisdiction invoked
- First appeal to the Court of Appeal under Rule 31(1)(a) of the Court of Appeal Rules (2022); the extension-of-time application below governed by section 7 of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Chesti Chemben & 92 Others v Kenya Revenue Authority", Case Analysis (2026). Court of Appeal Civil Appeal arising from ELRC Constitutional Petition No. 79 of 2015 (Wasilwa J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1535/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.