Chemben & 92 others v Kenya Revenue Authority (Civil Appeal E267 of 2020) [2026] KECA 1535 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the explanations given by the appellants for the delay were plausible so as to excuse the delay in filing the application for extension of time
- 2.Whether the trial court erred in finding that the delay in filing the application for extension of time was inordinate
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#Enlargement of time to appeal the ELRC judgment of 30th May 2018 (the relief sought via this appeal from the dismissal of the extension application)
The delay of 10 months and 19 days was not plausibly explained; blame was cast solely on counsel while the litigants failed to follow up on their matter
Costs
Each party shall bear the costs of this appeal
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.
We find that the delay was not suficiently explained and find no reason to fault the decision of the trial court. The appeal is dismissed. We, however, consider the matter that was before the trial court, being a labour relations dispute, each party shall bear the costs of this appeal.
A plausible and satisfactory explanation for delay is the key that unlocks the court’s fiow of discretionary favour. There has to be valid and clear reasons, upon which discretion can be favourably exercisable.
The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up on the matter with his erstwhile advocates.
An appellant shall not be entitled to rely on the proviso to sub-rule (1) unless his application for such copy was in writing and a copy of it was served upon the respondent.
Issues in the judgment
#The judgment states the hearing date as 17th March 2026 while delivery is dated 31st July 2026, but the ruling under appeal was delivered on 28th May 2020 and the parties' submissions are discussed in the present tense; the hearing date appears in a future-tense formulation, suggesting a possible typographical date.
Internal inconsistency in the recitation of the applicable rules: the notice of appeal timeline is assessed under rule 75 of the Court of Appeal Rules while the proviso on proceedings is quoted from Rule 82(2) of the 'Court of Appeals 2010 (now Rule 84 (2) of Court of Appeal Rules 22)' - the transition between the 2010 and 2022 rule sets is asserted but not applied to the 2018 events.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chemben & 92 others v Kenya Revenue Authority (Civil Appeal E267 of 2020) [2026] KECA 1535 (KLR)", 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.