If you have ever missed a court deadline and thought “surely the judge will understand,” the Court of Appeal’s decision in Moses Chesti Chemben & 92 Others v Kenya Revenue Authority [2026] KECA 1535 (KLR) is a sobering read. Delivered on 31st July 2026 by a bench of Mativo, Lilan and Okello, JJ.A , the judgment is a masterclass in why “the lawyer forgot to tell me” Rarely rescues a litigant who has slept on their rights.
The Backstory
The story begins nearly a decade ago. Ninety-three former employees of the Kenya Revenue Authority filed a petition before the Employment and Labour Relations Court (ELRC) in 2015, asking for a long list of dues: severance pay at three months’ salary for every year served, unpaid transport, medical and housing allowances, long-service bonuses for staff who had put in over fifteen years, and outstanding increments and promotions.
Justice Wasilwa dismissed the petition on 30th May 2018. That should have been the end of the road unless the employees appealed within the strict timelines set by law. They did not. A notice of appeal only surfaced on 8th October 2018, well outside the fourteen-day window the Court of Appeal Rules allow. Worse, the actual application asking the court to extend time and let them appeal late was not filed until 18th April 2019 nearly a year after judgment.
Unsurprisingly, the ELRC dismissed that application too, in a ruling dated 28th May 2020, finding the delay “inordinately too late” with no plausible explanation. The 93 former employees then took the fight to the Court of Appeal.
What the Appellants Argued
Counsel for the appellants, Ms Metto, tried a two-pronged strategy. First, at the trial court, she argued that she had wrongly calculated the delay as over a year, when in truth the appeal process had started only two months after judgment, once the appellants requested proceedings on 1st August 2018.
Second, and more sympathetically, she blamed the delay on circumstances beyond the appellants’ control that is coordinating consensus among 93 elderly, scattered former employees, and the practical difficulty of raising legal fees. She leaned on authorities suggesting that a client should not be punished for the mistakes of their advocate, citing the well-known principle from Philip Keipto Chemwolo & Another v Augustine Kubende [1986] eKLR.
The Authority’s Response
Counsel for the respondent, Mr Kipkurui, resisted the application in equally firm terms. It was submitted that the trial court’s exercise of discretion could not be faulted, as the appellants had failed to proffer a satisfactory explanation for a delay more than eleven months. Also, an unsubstantiated attribution of fault to counsel does not, without more, entitle a litigant to the exercise of the court’s discretionary favour. The respondent contended that the appellants had exhibited persistent indolence in failing to ascertain the status of their own matter for nearly a year. Further submitted that the letter of 1st August 2018 requesting proceedings could not be relied upon to mitigate the delay, having never been served upon the respondent as required by the applicable rules.
On the question of prejudice, the respondent submitted that, being a public body operating within the constraints of annual budgetary allocations, it stood to suffer real and demonstrable prejudice were the court to reopen a matter it had already treated as concluded.
How the Court of Appeal Saw It
Sitting as a first appellate court, the bench reminded itself of its duty to re-examine both the facts and the law under Rule 31(1)(a) of the Court of Appeal Rules, 2022 while still showing restraint before overturning a trial judge’s factual findings, since the trial judge had the advantage of observing the parties directly.
On the numbers, the court sided firmly with KRA. It held that the appellants could not rely on their August 2018 letter to shrink the delay, for two independent reasons: their notice of appeal itself had been filed out of time, and the letter requesting proceedings had never been served on the respondent as Rule 84(2) of the Court of Appeal Rules requires. Doing the actual arithmetic, the court found the true delay was 10 months and 19 days not the two months the appellants claimed.
On the “blame the advocate” argument, the court was equally unmoved. It reiterated the long-standing principle that a litigant carries an independent duty to follow up on their own case, referencing its earlier decision in Bi-Mach Engineers Limited v James Kahoro Mwangi [2011] eKLR, which held that simply accusing an advocate of failing to communicate does not excuse a client who never bothered to check in either.
Applying the Supreme Court’s guidance in Andrew Kiplagat Chemaringo v Paul Kipkorir Kibet [2018] eKLR that any delay must be satisfactorily explained, however long or short, the court concluded that no plausible explanation had been offered. The appeal was dismissed, though, given the labour relations nature of the underlying dispute, each side was left to bear its own costs.
Why This Case Matters
Three principles of practical significance emerge from this decision for practitioners engaged in Kenyan procedural law:
First, time limits are computed strictly, and the benefit of any exclusion of time is contingent upon proof of service. A litigant may not, in the absence of formal service upon the opposing party, rely on the mere fact of having requested proceedings to abridge the period of delay. Rule 84(2) of the Court of Appeal Rules is unambiguous in this regard: the exclusion of time is available only where the application for proceedings was made in writing and served upon the respondent.
Second, an allegation that counsel failed to communicate does not, of itself, constitute a satisfactory explanation for delay. The Court of Appeal has consistently affirmed that a litigant bears an independent and non-delegable duty to remain apprised of the progress of their own matter. Mere reliance on counsel, unaccompanied by any demonstrated effort at follow-up, will not suffice to move the court to exercise its discretion in the applicant’s favour.
Third, the existence of a large or logistically complex group of litigants does not, without more, lower the threshold for a satisfactory explanation of delay. While the Court acknowledged the practical difficulties inherent in coordinating consensus among ninety-three elderly and geographically dispersed former employees, such difficulties, however genuine, did not operate to relax the evidentiary standard required to justify the delay.
For practitioners handling time-barred appeals, Chemben underscores the importance of meticulous procedural diligence: every letter requesting proceedings ought to be served upon the opposing party, and proof of such service retained, since an unserved letter will, before the Court of Appeal, be treated as though it were never made.
Case details: Moses Chesti Chemben & 92 Others v Kenya Revenue Authority, Civil Appeal No. E267 of 2020, [2026] KECA 1535 (KLR), Court of Appeal at Nairobi (Mativo, Lilan & Okello, JJ.A), 31 July 2026.
