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Court of AppealStruck OutCivil Application (as stated in the judgment, arising from High Court Family Appeal No. E063 of 2024)

MWM v CAD (Civil Application E049 of 2025) [2025] KECA 1478 (KLR)

Court of Appeal
12 September 2025
WKW. KaranjaFTF. TuiyottPNP. Nyamweya
747 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Court of Appeal struck out a stay application because the mother could not prove she had properly filed a notice of appeal in Kenya.

What this practically means

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Executive summary

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This was a single-judge-panel Court of Appeal application under rule 5(2)(b) of the Court of Appeal Rules, 2022, seeking stays of execution of orders flowing from rulings in High Court Family Appeal No. E063 of 2024 and an order restraining removal of the minor RJLD from the Court's jurisdiction. The respondent challenged the Court's jurisdiction on the ground that no notice of appeal had been filed or served. In response, the applicant offered only belief-based information from her advocates that a notice of appeal had been filed. The only notice before the Court, though dated 31st January 2025, bore no stamp or endorsement of the High Court, and there was no evidence it had been paid for or served. The Court reaffirmed that rule 5(2)(b) jurisdiction is triggered by a filed notice of appeal or the appeal itself, and that while impropriety of a notice is ordinarily left to a striking-out motion, where the defect is glaring and unanswerable the Court will decline to assume jurisdiction. Holding the omission unanswerable, the three-judge bench (W. Karanja, F. Tuiyott and P. Nyamweya, delivering one judgment) unanimously struck out the notice of motion dated 31st January 2025 with costs to the respondent. The application was therefore disposed of on jurisdiction alone, without any determination of the merits of the intended appeal or the stay sought.

Questions the Court framed

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

  1. 1.Whether the Court has jurisdiction to entertain a rule 5(2)(b) application where no properly lodged, stamped, paid-for or served notice of appeal has been demonstrated

Key legal issues

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01

Whether the Court possessed jurisdiction to entertain the rule 5(2)(b) application

Holding

It did not, because the applicant failed to demonstrate a properly lodged, stamped, paid-for or served notice of appeal

Reasoning

The respondent's replying affidavit asserted that no notice of appeal had been filed and served. The applicant's further affidavit offered only belief-based information from her advocates. The only notice produced, though dated 31st January 2025, bore no stamp or endorsement of the High Court and there was no evidence of payment or service. Given this unanswerable omission, the Court declined to assume jurisdiction and struck out the motion.

p. 2

Legal principles established

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  • Jurisdiction of the Court of Appeal over a rule 5(2)(b) application is triggered only by a filed notice of appeal evincing an intention to appeal or the appeal itself
  • Where the absence or impropriety of a notice of appeal is glaring and unanswerable, the Court will decline to assume jurisdiction rather than await a striking-out motion
  • Ordinarily a rule 5(2)(b) hearing is not the forum to make a final call on the propriety of a notice of appeal; where the matter is arguable, jurisdiction is assumed on the basis of the contested notice and the issue reserved for a striking-out motion

Court orders

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  1. 1.The notice of motion dated 31st January 2025 struck out
  2. 2.Costs of the application to the respondent

The bench

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

WK
majority
FT
majority
PN
majority
On appeal from
High Court of Kenya
Family Appeal No. E063 of 2024
Jurisdiction invoked
rule 5(2)(b) of the Court of Appeal Rules, 2022 - jurisdiction dependent on a filed notice of appeal or appeal

Relief refused

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Stay of execution of orders flowing from proceedings consequent upon the rulings of 30th January 2025 and 17th August 2022 in High Court Family Appeal No. E063 of 2024

The Court lacked jurisdiction because no properly filed notice of appeal was demonstrated

p. 2

Order that the child RJLD not be removed from the Court's jurisdiction

Same want of jurisdiction

p. 2

Costs

Costs of the application to the respondent

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.

We accordingly do not have jurisdiction to determine the notice of motion dated 31st January 2025 and strike it out with costs to the respondent.
p. 2Final orders - striking out for want of jurisdiction
However, there will be occasion when the impropriety or absence is so glaring and unanswerable that it would be injudicious to assume jurisdiction when there is obviously none.
p. 2Exception to the general approach of reserving notice-of-appeal challenges to a striking-out motion
It is common learning that jurisdiction of this Court to entertain a rule 5(2)(b) application is triggered by the filing of a notice of appeal evincing an intention to appeal or the appeal itself
p. 1Jurisdictional threshold for rule 5(2)(b) applications

Issues in the judgment

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minor

The judgment's opening paragraphs are blank; the case title and application number are not stated on the face of the copy provided

minor

The High Court Family Appeal No. E063 of 2024 is referenced with rulings dated both 17th August 2022 and 30th January 2025, an apparent internal inconsistency in dates

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, "MWM v CAD (Civil Application E049 of 2025) [2025] KECA 1478 (KLR)", Case Analysis (2025). Civil Application (as stated in the judgment, arising from High Court Family Appeal No. E063 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1478/eng@2025-09-12

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