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Supreme CourtDismissedApplication 12 (E021) of 2021

Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others

Supreme Court of Kenya
10 February 2022
Martha Karambu KoomeM. KoomePhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimNjoki Susanna NdunguNjoki NdunguWilliam OukoW. Ouko
2,059 words in judgment
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·~8 min to read original · ~4 min brief

The bottom line

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Supreme Court refused KRA's request for more time to appeal, citing negligence and lack of diligence.

What this practically means

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The Kenya Revenue Authority and two others had their appeal struck out because it was incomplete and lacked specific reliefs. They asked the Supreme Court for more time to file a fresh appeal. The Court said no, explaining that extension of time is a favour, not a right. The applicants had ignored multiple chances to fix the errors and did not take the process seriously. The Court also noted that starting over would unfairly harm the other parties. The application was dismissed with costs.

Executive summary

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This was an application by the Kenya Revenue Authority and two others seeking leave to extend time to file a fresh Notice of Appeal, or alternatively, to file an appeal out of time, following the striking out of their earlier appeal (Supreme Court Petition No. 41 of 2019) on 22 September 2021 for want of form. The original appeal was struck out because it contained no specific reliefs and omitted essential parts of the record of appeal, including the High Court petition. The applicants argued that the striking out created a dilemma as to the fate of the notice of appeal, citing conflicting Court of Appeal decisions. The respondents opposed the application, arguing that the intended appeal did not raise a matter of general public importance and that the applicants had been negligent. The Supreme Court, in a unanimous decision delivered by Chief Justice Koome, dismissed the application. The court held that extension of time is an equitable remedy, not a right, and that the applicants had not taken the proceedings seriously, having had multiple opportunities to remedy the defects. The court found that the circumstances of the application were not contemplated by the Supreme Court Rules, and that starting the case afresh would be unconscionable and prejudicial to the respondents. The court applied the principles from Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others and Daniel Kimani Njihia v Francis Mwangi Kimani & another, and ordered the applicants to bear the costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have met the conditions for extension of time to file a fresh Notice of Appeal or to file an appeal out of time

Key legal issues

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01

Whether the court can extend time to file a fresh notice of appeal or appeal out of time after the original appeal was struck out for non-compliance with procedural rules.

Holding

The court declined to extend time, finding that the applicants had been injudicious and brazen in flouting directions, and that the circumstances were not contemplated by the Supreme Court Rules.

Reasoning

The court noted that the original appeal was struck out because it contained no specific reliefs and omitted essential parts of the record. The applicants had ample opportunity to remedy the defects but failed to do so. The court found that the applicants did not take the process seriously, and that starting the case afresh would be unconscionable and prejudicial to the respondents. The court also held that the rules on extension of time in the Supreme Court do not cover the situation where an appeal has been struck out, unlike the Court of Appeal Rules.

p. 6
02

Whether the applicants satisfied the principles for extension of time as set out in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others.

Holding

The court found that the applicants did not satisfy the principles, particularly the requirement to explain the delay and show that the application was brought without undue delay.

Reasoning

The court reviewed the history of the dispute, noting that it had been ongoing for ten years. The applicants had multiple opportunities to correct the defects in their appeal but failed to do so. The court found that the applicants had not provided a reasonable explanation for the delay or demonstrated that they had been vigilant. The court also noted that the respondents would suffer prejudice if the matter were to start afresh.

p. 5

Legal principles established

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  • Extension of time is an equitable remedy, not a right, granted only at the court's discretion.
  • A party seeking extension must explain the delay and show the application was made without undue delay.
  • Supreme Court proceedings are governed only by the Constitution, Supreme Court Act, Rules, and Practice Directions.
  • Courts will not aid parties who flout procedural directions or show disregard for court processes.
  • Prejudice to the opposing party is a key factor in deciding whether to grant extension of time.
  • Equity aids the vigilant, not the indolent; parties must act diligently to preserve their rights.

Court orders

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  1. 1.The notice of motion dated September 29, 2021, filed on 1st October 2021 is disallowed.
  2. 2.The applicant shall bear the costs of this application.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
Supreme Court Petition No. 41 of 2019
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Leave to extend time to file a fresh Notice of Appeal

The applicants have been injudicious and brazen in flouting directions of the Registrar, and undeserving of the court's exercise of discretion.

p. 6

In the alternative, extension of time to file an appeal out of time

The circumstances of the present application are not contemplated by the rules of this court, and the applicants have not shown a reasonable basis for the delay or taken the process seriously.

p. 5

Costs

The applicant shall bear the costs of this application.

Quotable passages

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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 no merit in the application and accordingly reject it. As costs follow the event, the applicants shall bear the costs of the Application.
p. 6 Disposition of the application
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court
p. 6 Nature of extension of time
the only regime of law that govern proceedings before it are, the Constitution, Supreme Court Act, the Supreme Court Rules and any Practice Directions
p. 6 Applicable law in the Supreme Court
the circumstances of the present application are not contemplated by the rules of this court, as readily admitted by the applicants
p. 5 Limitation of Supreme Court Rules on extension of time
To start the case all over again, for no fault of the respondents, is not only unconscionable but also insensitive and cruel.
p. 6 Prejudice to the respondents

Key timeline

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2021-09-22
Original appeal (Supreme Court Petition No. 41 of 2019) struck out for want of form.
2021-09-29
Applicants dated their notice of motion seeking extension of time.
2021-10-01
Notice of motion filed in the Supreme Court.
2021 (date not specified in analysis)
Supreme Court delivered unanimous decision dismissing the application.

Practical implications

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For lawyers

Strict compliance with Supreme Court rules

The Supreme Court will not grant extension of time after an appeal is struck out for non-compliance if the party had multiple chances to correct defects. Lawyers must ensure appeals contain all required parts and specific reliefs. The court emphasised that only the Constitution, Supreme Court Act, Rules, and Practice Directions apply—not the Civil Procedure Rules or Appellate Jurisdiction Act.

For businesses

Procedural failures can end your case

Businesses involved in tax disputes with KRA should note that even government agencies must follow court rules strictly. KRA lost its chance to appeal because it did not file a complete record. If your business is a respondent, you can oppose extension applications by showing the applicant was negligent and that you would suffer prejudice if the case restarts.

For individuals

Diligence is required in court

Individuals who are parties to a case must take court deadlines and directions seriously. The court said equity helps only those who are vigilant. If you miss a deadline, you must provide a clear explanation for the delay and show you acted quickly. Failing to do so may result in your case being permanently closed, as happened here.

Frequently asked questions

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Can KRA still appeal the Supreme Court decision in Kenya?+

No. The Supreme Court dismissed KRA's application for extension of time. Since the original appeal was struck out and no further appeal is possible, the matter is final. KRA cannot file another appeal on the same issues.

What is extension of time in Kenyan courts?+

Extension of time is a discretionary remedy where a court allows a party to do something after the deadline has passed, such as filing an appeal. It is not automatic—the applicant must explain the delay and show they acted without undue delay. The court balances fairness to both sides.

What happens if an appeal is struck out in the Supreme Court of Kenya?+

When an appeal is struck out for non-compliance, it is removed from the court list. The party may apply for extension of time to file a fresh appeal, but the court may refuse if the party was negligent or had multiple chances to fix the defects. The decision is final if the application is denied.

What is the Nicholas Kiptoo Arap Korir Salat case in Kenya?+

That Supreme Court case set out the principles for granting extension of time. The party must explain the delay, show the application was made without undue delay, demonstrate that the intended appeal has merit, and prove that no prejudice will be caused to the other side. These principles were applied in the KRA case.

Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Revenue Authority & 2 others v Mount Kenya Bottlers & 4 others", Case Analysis (2022). Application 12 (E021) of 2021. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2022/3/eng@2022-02-10

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