Tusker Mattresses v Joseph Mwangi Gachoka
The bottom line
#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
#Executive summary
#Key legal issues
#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
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.
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.
Legal principles established
#- 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
#- 1.The notice of appeal dated 23rd July 2021 is struck out
- 2.Costs of the application awarded to the applicant
- Jurisdiction invoked
- Rules 77, 84 & 85 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.