Thermos Hong Kong Limited v Doshi Ironmongers Limited
The bottom line
#Kenya's Court of Appeal confirmed that trade mark disputes can reach it on second appeal unless a law expressly says otherwise.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant has a right of appeal to the Court of Appeal given the silence of Section 21(6) of the Trade Marks Act and Rule 117 of the Trade Marks Rules on second appeals
- 2.Whether the prayers sought in the Memorandum of Appeal are viable grounds for striking out under Rule 84
- 3.Whether documents at pages 1247-1287 of the Record of Appeal should be expunged
Key legal issues
#Whether a second appeal lies to the Court of Appeal in a trade mark dispute given the silence of the Trade Marks Act
Yes - the right of appeal is founded on Section 72(1) of the Civil Procedure Act, and the Trade Marks Act contains no express exclusion
The court traced the jurisprudence from JSC v Rawal (holistic reading of Article 164(3)) through Ramadhan Mohamed Ali (express statutory bar under Section 15(4) of the Landlord and Tenant Act) to the Supreme Court's Nyutu decision. Finding no express exclusion in the Trade Marks Act and no purposive indication that the High Court was intended to be the court of last resort, it held the appellant's right of appeal was demonstrated.
Whether the viability of the prayers in the Memorandum of Appeal is a ground for striking out under Rule 84
No - those grounds raise contested facts outside the limited scope of Rule 84
Rule 84 permits striking out only where no appeal lies or an essential step was not taken or was taken out of time. Whether the prayers for cancellation of trade marks are available in law is a contested substantive issue to be argued at the hearing of the appeal, not on a summary application.
Whether documents at pages 1247-1287 of the Record of Appeal should be expunged
No - expungement of documents falls outside the scope of Rule 84
The application was brought under Rule 84, which governs striking out of notices of appeal or appeals on limited grounds. Expungement of documents from the record is not among those grounds, so the prayer could not be entertained regardless of its merits.
Legal principles established
#- A right of appeal to the Court of Appeal from a High Court appellate decision exists under Section 72(1) of the Civil Procedure Act unless expressly excluded by statute; statutory silence does not exclude the right
- Rule 84 is a summary procedure limited to defined grounds: no appeal lies, or an essential step not taken or taken out of time; contested issues cannot be determined under it
Court orders
#- 1.The application dated 8th April 2021 is dismissed with costs
- 2.The appeal shall be heard and determined on merit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Mombasa HCA 251 of 2017
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (right of appeal); Rule 84 of the Court of Appeal Rules (application to strike out)
Relief refused
#Striking out the appeal
No express statutory provision excludes a second appeal; right of appeal founded on Section 72 of the Civil Procedure Act
Expungement of documents at pages 1247-1287 of the Record of Appeal
Beyond the scope of Rule 84 under which the application was brought
Costs
The application was dismissed with costs to the appellant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, the application fails and is dismissed with costs. The appeal shall be heard and determined on merit.
The upshot is that the appellants have demonstrated that their right of appeal is properly founded upon an express statutory provision.
This Rule clearly limits the grounds upon which an application to strike out a notice of appeal and/or an appeal can be made.
That constitutional right to appeal can only be denied, limited or restricted by express statutory provision properly justified as required by the Constitution itself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thermos Hong Kong Limited v Doshi Ironmongers Limited", Case Analysis (2022). Civil Appeal (Application) E013 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/544/eng@2022-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.