Owira v Kenya Revenue Authority (Civil Application E019 of 2026) [2026] KECA 2026 (KLR) (19 June 2026) (Ruling)

1 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KAKAMEGA (CORAM: RADIDO S. OKIYO, JA (IN CHAMBERS) CIVIL APPLICATION NO. E019 OF 2026 (Formerly Kisumu Civil Application No. E037 of 2026) BETWEEN FRANSISCA APONDI OWIRA….........APPELLANT/APPLICANT AND KENYA REVENUE AUTHORITY....................... RESPONDENT (Being an application for the extension of time to lodge and file a Record of Appeal against the judgment of the Employment and Labour Relations Court (Hon Mr Justice Nderitu) delivered on 15th May 2025 in Bungoma ELRC Cause No. E004 of 2024) RULING 1. Through a Motion brought under Rule 4 of the Court of Appeal Rules 2022, and dated 19 th December 2025 and filed in Court on 2 nd March 2026, Francisca Apondi Owira (the applicant) seeks an order to extend time to lodge and serve a Record of Appeal against the judgment of the Superior Court delivered on 15 th May 2025. 2. The primary grounds in support of the Motion were that a Notice of Appeal was lodged on 22 nd May 2025; the applicant was unable to file the Record of Appeal within the prescribed time due to reasons beyond her control in obtaining certified copies of proceedings 2 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 and a certificate of delay was only provided on 7 th October 2025; the 3 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 advocate with instructions was involved in a consultancy for the recruitment at the County Public Service Board, Bungoma from 10 th September 2025; the delay was not inordinate; there was an arguable appeal; the Respondent would suffer no prejudice and that the interests of justice favoured the grant of leave. 3. An advocate with the Respondent filed a replying affidavit sworn on 9th March 2026, in opposition to the application attesting that the Notice of Appeal though filed was not served within the 7 days stipulated by Rule 77 of the Court of Appeal Rules, 2022; the Respondent only became aware of the Notice of Appeal upon service of the application under consideration; there was no evidence that the Notice of Appeal was served; there was no evidence that the applicant’s advocate was engaged in a consultancy; no sufficient cause for the delay had been offered and that the application was without merit. 4. The applicant’s advocate filed a reply to the replying affidavit deponing that he had instructed his clerk to serve the Notice of Appeal. The advocate attached a 4 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 copy of the judgment sought to be impugned, as well as copies 5 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 of Gazette Notices to support the contention that he was involved in a consultancy at the material time. 5. The applicant filed submissions dated 13th March 2026. 6. The applicant cited Leo Sila Mutiso v Rose Hellen Wangari Mwangi (1999) 2 EA 231 for the proposition that the factors the Court ought to consider were the length of the delay, the reason for the delay, the chances of the intended appeal succeeding and the degree of prejudice likely to be occasioned to the Respondent. In this respect, the applicant reiterated the explanations set out in the supporting affidavit about the delay in obtaining certified copies of proceedings, as confirmed by the certificate of delay and asserted that the delay was due to court processes which could not be visited upon her and further reliance was placed on Mwangi v Kenya Airways Ltd (2003) KLR. 7. Citing Stanley Kangethe Kinyanjui v Tony Ketter & 5 Ors (2013) eKLR, the applicant submitted that the intended appeal was arguable. 6 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 8. According to the applicant, the grant of leave would not prejudice the Respondent but would deny her an opportunity to be heard. 9. The applicant urged the Court to exercise its discretion in her favour to promote substantive justice. 10. The Respondent’s submissions were not on the record by the morning of the hearing. 11. The Court has considered the application, affidavits and submissions on record. 12. Rule 4 of the Court of Appeal Rules gives this Court the jurisdiction to extend time. The Rule provides: The Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or a superior court, for the doing of any act authorised or required by these Rules, whether before or after the doing of the act, and a reference in these Rules to any such time shall be construed as a reference to that time as extended. the burden of laying a basis to discretion to extend time, is a consideration delay. The delay should be explained to the 7 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 13. The Supreme Court summarised the relevant principles in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Ors (2014) eKLR, thus: i. extension of time is not right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the Court. ii. satisfaction of the Court; iii. to be made on a case-to- case basis; iv. satisfaction of the Court; v. by the respondents if the extension is granted; vi. whether the application has been brought without undue delay; and, whether there will be any prejudice whether there is a reasonable reason for whether the court should exercise a party who seeks for extension of time has 8 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 vii. whether in certain cases, like election petitions, public interest should be a consideration for extending time. 14. The discretion of the Court to grant an extension of time under Rule 4 of the Court of Appeal Rules, 2022 is unfettered. 15. The Ruling sought to be appealed against was delivered on 15 th May 2025. A Notice of Appeal was lodged on 22nd March 2025. The applicant sent a letter dated 21st May 2025 to the Deputy Registrar, seeking certified copies of the proceedings. She sent a reminder on 24th July 2025. 16. The Deputy Registrar availed the certified copies of proceedings and a certificate of delay on 7 th October 2025. This is the material and relevant timeline for assessing the delay and reasons for the delay, and not the date of the delivery of judgment and or application for certified copies of the proceedings. 17. By virtue of Rule 84 of the Court of Appeal Rules, 2022, the applicant should have lodged the Record of Appeal within 60 days of 7 th October 2025, that is, before the end of 7th December 2025. The instant 9 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 application was application after getting certified copies of and the certificate of delay. The applicant's advocate in the recruitment at the County Public Service Board, Bungoma, had lapsed on 3rd December 2025. There been no explanation why it took 3 months to file the application. It is also instructive that the application dated 19th December 2025 but was only filed on 10 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 filed on 2 nd March 2026, about 3 months after the lapse of the prescribed time. 18. The applicant contended that her advocate was involved in a recruitment process at the County Public Service Board, Bungoma. Copies of Gazette Notice placed before the Court show that the advocate was involved in the process from around 11 th September 2025 to 3rd December 2025. 19. March 2026. 20. Throughout the proceedings before the superior court below, the applicant was represented by the firm of BS Advocates LLP. It was not suggested that the said offices were closed or the advocates were not able to attend to It took the applicant 3 months to file the instant application that there were several arguable and points of law, including the fact that the judge of the superior court ignored the doctrine of precedent. said contention was not amplified in the affidavit or out a case for the exercise of its discretion in her favour. dismissed. The Respondent’s submissions were not on 11 | 9 Page K a k a m e g a C i v i l A p p l i c a t i o n N o . E 019 o f 2 0 2 6 client matters because Mr Wasilwa was involved in the recruitment exercise. 21. The Court finds the delay and the reasons tendered for the delay unsatisfactory. 22. The applicant attested in the supporting affidavit to the submissions. 23. 24. record, and the Court makes no order on costs. Dated and delivered at Kakamega on this 19th day of June 2026. RADIDO S. OKIYO I certify that this is a true copy of the original Signed DEPUTY REGISTRAR ………………………….……… JUDGE OF APPEAL December 2025 is19thThe Court application dated The Court is not satisfied that the applicant has made