Introduction
1. For determination is the Notice of Motion dated 4th February 2026 brought under Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, section 32 of the Tax Appeals Tribunal Act, section 56 of the Tax Procedures Act and Articles 47, 48 and 50 of the Constitution.
2. The Applicant, in the main, seeks enlargement of time and grant the Applicant leave to file an appeal out of time against the ruling of the Tax Appeals Tribunal delivered on 17th December 2025 in TAT Miscellaneous Application No. E090 of 2025, Mafuko Industries Limited v Commissioner of Legal Services & Board Coordination.
3. The Applicant also seeks orders that the annexed Draft Memorandum of Appeal be deemed as duly filed upon payment of the requisite court fees, and that costs of the application be in the intended appeal.
4. The application is supported by the affidavit of Sailen Lalji Ramji, a Director of the Applicant, sworn on 2nd February 2026.
5. The Applicant deposes that its failure to file the appeal within the prescribed period was neither deliberate but arose from the need to obtain legal advice following the Tribunal's ruling. It further states that the intended appeal raises arguable questions of law relating to the Tribunal's exercise of discretion, the applicable legal threshold and the constitutional principles of fairness, proportionality and access to justice. It maintains that the delay is not inordinate, that the Respondent will suffer no prejudice incapable of compensation by costs, and that unless leave is granted it will be denied an opportunity to challenge the Tribunal's decision.
6. The application was canvassed by way of written submissions. The Applicant filed written submissions dated 17th June 2026 in support of the application. Although duly served, the Respondent neither filed a replying affidavit nor written submissions in opposition.
Analysis and Determination
7. Having considered the pleadings and submissions on record, I find that the sole issue for determination is whether the Applicant has established sufficient cause for enlargement of time to lodge an appeal against the ruling of the Tax Appeals Tribunal delivered on 17th December 2025.
8. The jurisdiction of this Court is founded on section 32(1) of the Tax Appeals Tribunal Act, which provides:
"A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party."
9. Further, Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015 (“the Rules”) provides that an appellant shall, within thirty days, after the date of service of a notice of appeal under section 32(1).
10. Rule 4 provides for the extension of time specified under Rule 3, where the Court, on application, is satisfied that “owing to absence from Kenya, sickness, or other reasonable cause, the appellant was unable to file the memorandum of appeal within that period and that there has been no unreasonable delay on the part of the appellant.”
11. In Commissioner of Investigations & Enforcement v Ahmed [2021] KEHC 10 (KLR), Majanja J, while allowing the Commissioner’s application for extension of time under Rule 4, stated that:
“Under Rule 4 of the Rules, the court must be satisfied that there is reasonable cause to grant the extension of time. In this case, the Commissioner filed the Notice of Appeal within time. It has explained that that reason it filed the Memorandum and Record of Appeal late was because of the illness by its counsel and that it mistook the date on the ground that date affixed on the receipt stamp was 16th June 2021. This is supported by the evidence and is a reasonable explanation for the delay of 3 days in filing the appeal. While the Commissioner did not produce evidence of it counsel’s illness, I am willing to give it the benefit of doubt given that every effort was made to file the appeal and when the misstate was realised, the application for condonation was filed in short order. Lastly, I do not think that the Commissioner should be punished the mistake or inadvertence of its counsel on record.
This is case where the Commissioner should be allowed to exercise its statutory right of appeal hence any prejudice that would be occasioned on the Respondent would be assuaged by an order for costs. The Record of Appeal which contains the Memorandum of Appeal has now been filed and served.”
12. It is well settled that the power to extend time is discretionary, though such discretion must be exercised judiciously and on sound legal principles. The Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR articulated the guiding factors to include: the length of delay, the reason for the delay, the arguability of the intended appeal, the degree of prejudice to the respondent, and the wider interests of justice.
13. Similarly, in First American Bank of Kenya Ltd v Gulab P Shah & 2 Others [2002] 1 EA 65, the court emphasized that the discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a party who has deliberately sought to obstruct or delay the course of justice.
14. Guided by the foregoing principles, the Court now turns to consider whether the Applicant has satisfied the threshold.
15. In the present case, the Tribunal delivered its ruling on 17th December 2025. The statutory period for filing an appeal expired on 16th January 2026. The present application was lodged on 4th February 2026. The delay is therefore approximately nineteen days.
16. In my view, a delay of nineteen days cannot be described as inordinate. Although the explanation advanced—that the Applicant required legal advice before deciding whether to appeal—is not, standing alone, the strongest explanation, each application must be considered in light of all the surrounding circumstances. The Court is required to balance the explanation against the length of the delay, the conduct of the parties and the demands of substantive justice.
17. I have considered the draft Memorandum of Appeal annexed to the application. Without expressing any concluded view on its merits, I find that it raises arguable questions regarding the Tribunal's exercise of discretion in declining to enlarge time, the applicable legal principles governing interlocutory applications and the extent to which constitutional values should inform the exercise of judicial discretion in tax disputes.
18. The intended appeal cannot therefore be said to be frivolous.
19. Equally important is the absence of any demonstrated prejudice to the Respondent. The application has not been opposed. The Respondent has not suggested that permitting the appeal to be filed out of time would compromise the fair determination of the dispute or occasion prejudice incapable of being compensated by an award of costs.
20. From the record, I note that the Tribunal had earlier declined to enlarge time in favour of the Applicant. However, that circumstance is not determinative of the present application. This Court is exercising an independent statutory discretion under section 32 of the Tax Appeals Tribunal Act in relation to an appeal to the High Court.
21. In my view, in the present case, a balance between the need for certainty and finality in litigation against the constitutional imperative that disputes should, where reasonably possible, be determined on their merits, yields to the former.
22. Articles 48 and 50 of the Constitution guarantee access to justice and the right to a fair hearing. Those constitutional values favour the exercise of discretion where the delay is relatively short, the intended appeal is arguable, and no discernible prejudice has been demonstrated.
23. Consequently, the Notice of Motion dated 4th February 2026 is allowed on the following terms:
i. Time is hereby enlarged for the Applicant to lodge an appeal against the ruling of the Tax Appeals Tribunal delivered on 17th December 2025.
ii. The Applicant shall serve the Memorandum of Appeal upon the Respondent within seven (7) days of filing.
iii. Costs of the application shall abide the outcome of the intended appeal.
24. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. For determination is the Notice of Motion dated 4th February 2026 brought under Order 50 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, section 32 of the Tax Appeals Tribunal Act, section 56 of the Tax Procedures Act and Articles 47, 48 and 50 of the Constitution.
2. The Applicant, in the main, seeks enlargement of time and grant the Applicant leave to file an appeal out of time against the ruling of the Tax Appeals Tribunal delivered on 17th December 2025 in TAT Miscellaneous Application No. E090 of 2025, Mafuko Industries Limited v Commissioner of Legal Services & Board Coordination.
3. The Applicant also seeks orders that the annexed Draft Memorandum of Appeal be deemed as duly filed upon payment of the requisite court fees, and that costs of the application be in the intended appeal.
4. The application is supported by the affidavit of Sailen Lalji Ramji, a Director of the Applicant, sworn on 2nd February 2026.
5. The Applicant deposes that its failure to file the appeal within the prescribed period was neither deliberate but arose from the need to obtain legal advice following the Tribunal's ruling. It further states that the intended appeal raises arguable questions of law relating to the Tribunal's exercise of discretion, the applicable legal threshold and the constitutional principles of fairness, proportionality and access to justice. It maintains that the delay is not inordinate, that the Respondent will suffer no prejudice incapable of compensation by costs, and that unless leave is granted it will be denied an opportunity to challenge the Tribunal's decision.
6. The application was canvassed by way of written submissions. The Applicant filed written submissions dated 17th June 2026 in support of the application. Although duly served, the Respondent neither filed a replying affidavit nor written submissions in opposition.
Analysis and Determination
7. Having considered the pleadings and submissions on record, I find that the sole issue for determination is whether the Applicant has established sufficient cause for enlargement of time to lodge an appeal against the ruling of the Tax Appeals Tribunal delivered on 17th December 2025.
8. The jurisdiction of this Court is founded on section 32(1) of the Tax Appeals Tribunal Act, which provides:
"A party to proceedings before the Tribunal may, within thirty days after being notified of the decision or within such further period as the High Court may allow, appeal to the High Court, and the party so appealing shall serve a copy of the notice of appeal on the other party."
9. Further, Rule 3 of the Tax Appeals Tribunal (Appeals to the High Court) Rules, 2015 (“the Rules”) provides that an appellant shall, within thirty days, after the date of service of a notice of appeal under section 32(1).
10. Rule 4 provides for the extension of time specified under Rule 3, where the Court, on application, is satisfied that “owing to absence from Kenya, sickness, or other reasonable cause, the appellant was unable to file the memorandum of appeal within that period and that there has been no unreasonable delay on the part of the appellant.”
11. In Commissioner of Investigations & Enforcement v Ahmed [2021] KEHC 10 (KLR), Majanja J, while allowing the Commissioner’s application for extension of time under Rule 4, stated that:
“Under Rule 4 of the Rules, the court must be satisfied that there is reasonable cause to grant the extension of time. In this case, the Commissioner filed the Notice of Appeal within time. It has explained that that reason it filed the Memorandum and Record of Appeal late was because of the illness by its counsel and that it mistook the date on the ground that date affixed on the receipt stamp was 16th June 2021. This is supported by the evidence and is a reasonable explanation for the delay of 3 days in filing the appeal. While the Commissioner did not produce evidence of it counsel’s illness, I am willing to give it the benefit of doubt given that every effort was made to file the appeal and when the misstate was realised, the application for condonation was filed in short order. Lastly, I do not think that the Commissioner should be punished the mistake or inadvertence of its counsel on record.
This is case where the Commissioner should be allowed to exercise its statutory right of appeal hence any prejudice that would be occasioned on the Respondent would be assuaged by an order for costs. The Record of Appeal which contains the Memorandum of Appeal has now been filed and served.”
12. It is well settled that the power to extend time is discretionary, though such discretion must be exercised judiciously and on sound legal principles. The Court of Appeal in Thuita Mwangi v Kenya Airways Ltd [2003] eKLR articulated the guiding factors to include: the length of delay, the reason for the delay, the arguability of the intended appeal, the degree of prejudice to the respondent, and the wider interests of justice.
13. Similarly, in First American Bank of Kenya Ltd v Gulab P Shah & 2 Others [2002] 1 EA 65, the court emphasized that the discretion is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable error, but not to assist a party who has deliberately sought to obstruct or delay the course of justice.
14. Guided by the foregoing principles, the Court now turns to consider whether the Applicant has satisfied the threshold.
15. In the present case, the Tribunal delivered its ruling on 17th December 2025. The statutory period for filing an appeal expired on 16th January 2026. The present application was lodged on 4th February 2026. The delay is therefore approximately nineteen days.
16. In my view, a delay of nineteen days cannot be described as inordinate. Although the explanation advanced—that the Applicant required legal advice before deciding whether to appeal—is not, standing alone, the strongest explanation, each application must be considered in light of all the surrounding circumstances. The Court is required to balance the explanation against the length of the delay, the conduct of the parties and the demands of substantive justice.
17. I have considered the draft Memorandum of Appeal annexed to the application. Without expressing any concluded view on its merits, I find that it raises arguable questions regarding the Tribunal's exercise of discretion in declining to enlarge time, the applicable legal principles governing interlocutory applications and the extent to which constitutional values should inform the exercise of judicial discretion in tax disputes.
18. The intended appeal cannot therefore be said to be frivolous.
19. Equally important is the absence of any demonstrated prejudice to the Respondent. The application has not been opposed. The Respondent has not suggested that permitting the appeal to be filed out of time would compromise the fair determination of the dispute or occasion prejudice incapable of being compensated by an award of costs.
20. From the record, I note that the Tribunal had earlier declined to enlarge time in favour of the Applicant. However, that circumstance is not determinative of the present application. This Court is exercising an independent statutory discretion under section 32 of the Tax Appeals Tribunal Act in relation to an appeal to the High Court.
21. In my view, in the present case, a balance between the need for certainty and finality in litigation against the constitutional imperative that disputes should, where reasonably possible, be determined on their merits, yields to the former.
22. Articles 48 and 50 of the Constitution guarantee access to justice and the right to a fair hearing. Those constitutional values favour the exercise of discretion where the delay is relatively short, the intended appeal is arguable, and no discernible prejudice has been demonstrated.
23. Consequently, the Notice of Motion dated 4th February 2026 is allowed on the following terms:
i. Time is hereby enlarged for the Applicant to lodge an appeal against the ruling of the Tax Appeals Tribunal delivered on 17th December 2025.
ii. The Applicant shall serve the Memorandum of Appeal upon the Respondent within seven (7) days of filing.
iii. Costs of the application shall abide the outcome of the intended appeal.
24. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 9TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent