Lulu v Njenga & another (Civil Application E014 of 2024) [2025] KECA 804 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a stay application because the party never filed a valid notice of appeal against the order being challenged.
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 applicant's motion dated 16th May 2024, seeking to vacate the High Court order of 15th June 2023 and to stay proceedings in Malindi Civil Appeal No. 89 of 2022 pending an intended appeal, should be granted
- 2.Whether the applicant had properly invoked the Court's jurisdiction, including by filing a valid notice of appeal
Key legal issues
#Whether the applicant validly invoked the Court's jurisdiction absent a notice of appeal against the impugned order
The notice of appeal annexed related only to directions of 20th July 2023, not to the impugned order of 15th June 2023; accordingly no intention to appeal against the impugned order had been expressed and the jurisdictional prerequisite was unmet.
The Court held that a notice of appeal is a mandatory jurisdictional prerequisite, following the Supreme Court's University of Eldoret decision and the Court of Appeal's Apungu Arthur Kibira decision. The only notice on record related to directions dated 20th July 2023, which 'have no relation to the impugned order'. Further, the applicant relied on Order 42 rule 6, Order 22 rule 22 and section 3A of the Civil Procedure Act, provisions that 'have no place in the proceedings before this court'. With no arguable appeal demonstrated, the motion was incompetent.
Whether the incomplete, selectively compiled record justified dismissal of the motion
The record omitted vital documents (pleadings and decision in the succession cause, the interlocutory application and impugned order, affidavits, notice of appeal and memorandum of appeal), leaving the Court unable to assess arguability.
The Court noted at the outset that the record had been 'selectively compiled to exclude' vital documents relevant to determining the motion. It declined to judge whether the exclusion was 'by design or inadvertence' and confined itself to pronouncing on the motion on the scanty record before it. Combined with the absence of a proper notice of appeal, this led inexorably to striking out the motion rather than assessing the merits of stay or vacation of the High Court orders.
Legal principles established
#- A notice of appeal is a jurisdictional prerequisite to invoking the Court of Appeal's jurisdiction; without one properly on record, a party has not expressed an intention to appeal.
Court orders
#- 1.The applicant's notice of motion dated 16th May 2024 was struck out as incompetent
- 2.Costs of the motion to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi (S M Githinji, J)
- HCCA No. 89 of 2022
- Jurisdiction invoked
- Not expressly stated; the applicant invoked Order 42 rule 6 and Order 22 rule 22 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, which the Court held 'have no place in the proceedings before this court'; the jurisdictional threshold engaged was the requirement of a notice of appeal.
Relief refused
#Vacation of the order issued by the High Court at Malindi (S M Githinji, J) on 15th June 2023
The motion was incompetent: no valid notice of appeal was on record and the applicant had not invoked the Court's jurisdiction
Stay of proceedings, including writing and/or delivery of any ruling or judgment in Malindi Civil Appeal No. 89 of 2022, pending the intended appeal
There was no material before the Court to suggest the intended appeal was arguable, and no proper notice of appeal was filed
Costs
The motion was struck out with costs to the respondents.
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.
The filing of a notice of appeal is not premised on any occurrence or condition to be fulfilled by the appellant. The filing of a notice of appeal signifies the intention to appeal.
A notice of appeal is a primary document to be filed outright whether or not the subject matter under appeal is that which requires leave or not. It is a jurisdictional pre- requisite.
we reach the inescapable conclusion that the applicant’s motion is incompetent and is hereby struck out with costs to the respondents. Orders accordingly.
Issues in the judgment
#The judgment describes the impugned order as dated 15th June 2023 but earlier refers to 'the respondents’ interlocutory application dated 14th June 2023 culminating in the impugned order dated 15th June 2022'; the year in the latter appears to be a typographical inconsistency.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lulu v Njenga & another (Civil Application E014 of 2024) [2025] KECA 804 (KLR)", Case Analysis (2025). Notice of motion dated 16th May 2024 (appeal from Malindi HCCA No. 89 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/804/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.