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Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment· [2025] KECA 916 (KLR)

Tusker Mattresses v Joseph Mwangi Gachoka

Court of Appeal of Kenya
26 May 2025
304 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a notice of appeal because the appellant never served it or filed the appeal, proving inactivity gets appeals dismissed.

What this practically means

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Executive summary

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Before the Court of Appeal at Nakuru (M. Warsame, J. Mativo and M. Gachoka, JJ.A) was a notice of motion dated 15th October 2021, brought under rules 77, 84 and 85 of the Court of Appeal Rules, 2022, seeking to strike out a notice of appeal dated 23rd July 2021 on the ground that the respondent had failed to serve it within the 7 days prescribed by the rules. The application was supported by an affidavit of Mercy C. Kirui sworn on 15th October 2021. The respondent filed no response and, though duly served, did not appear at the hearing; only counsel for the applicant attended. The court noted that the notice of appeal was filed on 23rd July 2021 and that the applicant had never been served with the notice of appeal or the record of appeal - a fact not controverted by the respondent. It concluded that the respondent had failed to serve the notice or file a record within time and had shown no interest in pursuing the appeal, demonstrating that the appellant had lost interest in the appeal. The court held this was a proper case for striking out and ordered the notice of appeal struck out with costs to the applicant. No authorities were cited and there was no separate opinion by any judge; the bench was unanimous.

Key legal issues

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01

Whether failure to serve a notice of appeal within 7 days and to file a record of appeal justifies striking out the notice of appeal

Holding

The court held it did; the respondent neither served the notice of appeal nor filed a record of appeal within time, and the applicant's assertion of non-service was uncontroverted.

Reasoning

The court considered the application under rules 77, 84 and 85 of the Court of Appeal Rules, 2022. The notice of appeal was filed on 23rd July 2021, but the applicant stated it had not been served with the notice or the record of appeal. The respondent filed no response to the application and did not appear at the hearing despite due service, so the non-service was uncontroverted. The respondent's total inactivity demonstrated abandonment of the appeal, making striking out the proper remedy, with costs to the applicant.

p. 1

Legal principles established

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  • Where a notice of appeal is not served within the time prescribed by the Court of Appeal Rules and no record of appeal is filed and no interest in pursuing the appeal is shown, the notice of appeal is liable to be struck out.

Court orders

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  1. 1.The notice of appeal dated 23rd July 2021 is struck out
  2. 2.Costs of the application awarded to the applicant
Jurisdiction invoked
Rules 77, 84 & 85 of the Court of Appeal Rules, 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tusker Mattresses v Joseph Mwangi Gachoka", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/916/eng@2025-05-26

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