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Court of AppealDismissedCivil Appeal (Application) E013 of 2021

Thermos Hong Kong Limited v Doshi Ironmongers Limited

Court of Appeal
10 June 2022
3,169 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The respondent applied under Rule 84 of the Court of Appeal Rules to strike out the appellant's appeal against a High Court judgment of 11 December 2019 (P.J.O. Otieno J, Mombasa HCA 251 of 2017) in a trade mark dispute, or alternatively to expunge documents at pages 1247-1287 of the Record of Appeal. The respondent argued that no second appeal lies under the Trade Marks Act and Rules, that the prayers for cancellation of three trade marks were unavailable in law, and that the impugned documents were not part of the High Court record. The appellant countered that its right of appeal arose under Section 72 of the Civil Procedure Act and Rules 82 and 87 of the Court of Appeal Rules, relying on Rothmans of Pall Mall and on the absence of any express statutory bar. The court framed the core issue as whether the silence of Section 21(6) of the Trade Marks Act and Rule 117 of the Trade Marks Rules excludes second appeals. Tracing the jurisprudence from the five-judge Rawal decision through Ramadhan Mohamed Ali (an express statutory bar case) to the Supreme Court's Nyutu ruling, the court held that no express provision excludes an appeal to the Court of Appeal from a High Court appellate decision in trade mark matters, and no purposive interpretation reveals an intention to make the High Court the court of last resort. The contested viability of the prayers and the expungement prayer fell outside Rule 84's limited scope. The application was dismissed with costs, and the appeal was directed to be heard on the merits.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the prayers sought in the Memorandum of Appeal are viable grounds for striking out under Rule 84
  3. 3.Whether documents at pages 1247-1287 of the Record of Appeal should be expunged

Key legal issues

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01

Whether a second appeal lies to the Court of Appeal in a trade mark dispute given the silence of the Trade Marks Act

Holding

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

Reasoning

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.

p. 6
02

Whether the viability of the prayers in the Memorandum of Appeal is a ground for striking out under Rule 84

Holding

No - those grounds raise contested facts outside the limited scope of Rule 84

Reasoning

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.

p. 4
03

Whether documents at pages 1247-1287 of the Record of Appeal should be expunged

Holding

No - expungement of documents falls outside the scope of Rule 84

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 8th April 2021 is dismissed with costs
  2. 2.The appeal shall be heard and determined on merit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
majority
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

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Striking out the appeal

No express statutory provision excludes a second appeal; right of appeal founded on Section 72 of the Civil Procedure Act

p. 5

Expungement of documents at pages 1247-1287 of the Record of Appeal

Beyond the scope of Rule 84 under which the application was brought

p. 4

Costs

The application was dismissed with costs to the appellant

Quotable passages

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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.
p. 6Final orders - dismissal of the striking-out application
The upshot is that the appellants have demonstrated that their right of appeal is properly founded upon an express statutory provision.
p. 6Right of second appeal under Section 72 of the Civil Procedure Act
This Rule clearly limits the grounds upon which an application to strike out a notice of appeal and/or an appeal can be made.
p. 3Scope of Rule 84 applications
That constitutional right to appeal can only be denied, limited or restricted by express statutory provision properly justified as required by the Constitution itself.
p. 4Article 164(3) and statutory limitation of the right of appeal (quoting Kiage JA in JSC v Rawal)

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, "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.