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Court of AppealDismissedCivil Application (not otherwise numbered in judgment)

Total Kenya Limited v Tuja t/a Tuwa Investments (Civil Application E020 of 2023) [2026] KECA 524 (KLR)

Court of Appeal of Kenya
13 March 2026
1,169 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to kill an appeal filed late, accepting that delays in getting typed court proceedings were beyond the appellant's control.

What this practically means

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Executive summary

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Total Kenya Limited applied under Rules 42(1), 43(1), 82(1) and 83 of the Court of Appeal Rules, 2010, seeking an order that the respondent's Notice of Appeal dated 18th May 2022 against a High Court judgment at Mombasa of 5th May 2022 be deemed withdrawn for failure to institute the appeal within the appointed time under Rule 84(1). The dispute arose from termination of a Young Dealer Marketing Licence for a petrol station; the respondent's magistrate's court claim and first appeal had both been dismissed. The respondent attributed the delay in lodging the memorandum and record of appeal to the High Court's delay in typing proceedings, oversight following a transition of associates within his advocates' firm, and the fact that certification and issuance of the certificate of delay remained outstanding - matters beyond his control. The Court of Appeal (Gatembu Kairu, Murgor and Nyamweya, JJ.A) recalled that Rule 85(1) operates as an inbuilt case-management mechanism enabling the Court to clean up its records by deeming unbacked notices of appeal withdrawn, but stressed the discretionary nature of the order. Noting that the Notice of Appeal had been filed and served on time and that the letter bespeaking proceedings was issued within thirty days, and accepting the respondent's explanation, the Court held this was not a proper case for the exercise of the Rule 85(1) discretion. The application dated 9th February 2023 was dismissed, with costs of the application ordered to abide the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether the applicant has met the requirements for the Court to deem the Notice of Appeal as withdrawn under Rule 85(1) of the Court of Appeal Rules

Key legal issues

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01

Whether the Notice of Appeal should be deemed withdrawn for failure to institute the appeal within the appointed time

Holding

The application was dismissed because the respondent satisfactorily explained the delay in instituting the appeal, making this an improper case for the Court's discretion under Rule 85(1)

Reasoning

The Notice of Appeal was filed and served within time, and the letter bespeaking proceedings was made within thirty days. The delay in instituting the appeal was attributable to the transition of associates in the respondent's advocates' firm and to the High Court registry's delay; the proceedings had been typed and only certification and the certificate of delay remained, matters beyond the respondent's control. The Court therefore declined to exercise its Rule 85(1) discretion.

p. 3

Legal principles established

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  • An appeal shall be instituted within sixty days of lodging the Notice of Appeal, but where an application for a copy of the proceedings is made within thirty days of the decision, the time certified for preparation and delivery of the copy is excluded in computing the sixty days
  • Rule 85(1) is an inbuilt case-management mechanism enabling the Court, on its own motion or on application, to deem withdrawn a Notice of Appeal not backed by institution of an appeal within the appointed time, with the party in default liable to pay costs

Court orders

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  1. 1.The application dated 9th February 2023 is dismissed
  2. 2.Costs of the application shall abide the outcome of the appeal

The bench

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

majority
majority
majority
On appeal from
High Court at Mombasa
Jurisdiction invoked
Rules 42(1), 43(1), 82(1) and 83 (now 84(1) and 85(1)) of the Court of Appeal Rules, 2010

Relief refused

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Deeming of the respondent's Notice of Appeal dated 18th May 2022 as withdrawn under Rule 85(1)

The respondent gave a satisfactory explanation for the delay - the proceedings had been typed and only certification and issuance of the certificate of delay, matters beyond the respondent's control, remained

p. 3

Costs

Costs of the application shall abide the outcome of the appeal.

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.

The application dated 9th February 2023 fails and is hereby dismissed. Costs of the application shall abide the outcome of the appeal.
p. 3Final orders - dismissal of the application and costs
We are satisfied with the explanation. In the circumstances, this in our view is not a proper case for the exercise of the Court's discretion under Rule 85(1) of the Court of Appeal Rules.
p. 3Discretion under Rule 85(1)
It is a rule that telegraphs that notices of appeal should not be lodged in jest or frivolously, with no real or serious intention to actually institute appeals...
p. 2Rationale of Rule 85(1) as an inbuilt case-management system

Issues in the judgment

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minor

The quotation from Mae Properties Limited v Joseph Kibe is introduced but the quoted text is omitted from the judgment text, with the narrative jumping straight to a 'See also' footnote

minor

Rule 84(1) is quoted with an apparent typographical error reading 'an appeal shall by instituted' instead of 'shall be instituted'

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, "Total Kenya Limited v Tuja t/a Tuwa Investments (Civil Application E020 of 2023) [2026] KECA 524 (KLR)", Case Analysis (2026). Civil Application (not otherwise numbered in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/524/eng@2026-03-13

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