BOS Shipping (East Africa) Limited v Texas Alarms (K) Limited (Civil Application E015 of 2024) [2025] KECA 1135 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a late Notice of Appeal, ending Texas Alarms' attempt to appeal a Mombasa land case it lost.
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 Notice of Appeal dated 15th December 2023 was filed out of time without leave of the Court
- 2.Whether the Notice of Appeal was served out of time contrary to the Court of Appeal Rules
- 3.Whether the application to strike out was brought within the 30-day period prescribed by the proviso to Rule 86
- 4.Whether the Notice of Appeal ought to be struck out
Key legal issues
#Whether a Notice of Appeal filed 9 days out of time and served well beyond the 7-day period, without leave, should be struck out under Rule 86.
Yes. The Notice of Appeal was filed 9 days late and served out of time contrary to Rules 77(2) and 79; the Respondent took no pre-emptory steps to regularise the appeal; the application was brought within 30 days of service; and the motion was allowed and the Notice of Appeal struck out with costs.
The court computed the timelines: judgment was delivered on 22nd November 2023, making 6th December 2023 the last day to file the Notice of Appeal; it was filed on 15th December 2023, 9 days late, and served on 9th February 2024 instead of within 7 days. The Respondent neither sought leave nor attended the hearing nor filed submissions. Because the application was dated 6th March 2024, within 30 days of service, the proviso to Rule 86 did not bar it, and the motion was warranted and merited.
Whether the strike-out application was lodged within the 30-day window in the proviso to Rule 86.
Yes. Measured from service of the Notice of Appeal on 9th February 2024, the application dated 6th March 2024 fell within the prescribed 30-day period.
The proviso to Rule 86 bars a strike-out application brought more than thirty days after service of the notice of appeal or record of appeal. The court found service occurred on 9th February 2024 and the application was dated 6th March 2024, hence timely. This temporal finding was a necessary condition to the exercise of the strike-out power.
Legal principles established
#- The power of the Court of Appeal to strike out an appeal or notice of appeal is discretionary and depends on the circumstances of each case.
- The power to strike out for breach of the appellate procedure rules must be exercised carefully, and is reserved for flagrant, deliberate, flippant or reckless non-compliance; and any strike-out application under Rule 86 must be brought within thirty days of service of the notice of appeal or record of appeal.
Court orders
#- 1.The Notice of Appeal dated 15th December 2023 and served on 9th February 2024 is struck out
- 2.Costs of the application awarded to the Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Not stated in the judgment (trial court, suit over plot MN/1/890, Mombasa)
- Not stated in the judgment
- Jurisdiction invoked
- Rule 86 of the Court of Appeal Rules, 2022 (application to strike out a notice of appeal)
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.
Accordingly, the Notice of motion dated 6th March 2024 is merited and is allowed, with the result that the Notice of Appeal filed on 15th December, 2024 and served on 9th February 2024 is hereby struck out with costs to the Applicant.
It is now settled principle that the power of this Court to strike out an appeal is discretionary, and is exercised based on the peculiar circumstances of each case.
Based on this computation, there is no doubt that the Notice of appeal was filed and served out of time contrary to the requirements of Rules 77(2) and 79 of the Court of Appeal Rules.
We also take cognaisance that the Respondent has failed to undertake any preemptory steps to regularize the appeal prior to the filing and determination of this motion.
Issues in the judgment
#The final order refers to the Notice of Appeal as 'filed on 15th December, 2024', whereas the motion and the body of the judgment consistently describe it as dated/filed on 15th December 2023 - an apparent typographical error in the disposition.
The case number and neutral citation of the application are not stated anywhere in the judgment; only the date of the motion (6th March 2024) identifies the proceedings.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "BOS Shipping (East Africa) Limited v Texas Alarms (K) Limited (Civil Application E015 of 2024) [2025] KECA 1135 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 6th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1135/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.