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Court of AppealDismissedCivil Appeal (from Malindi High Court Civil Appeal No. 89 of 2022)

Lulu v Njenga & another (Civil Appeal E036 of 2023) [2026] KECA 779 (KLR)

Court of Appeal of Kenya
24 April 2026
2,808 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that routine case-management directions cannot be appealed, dismissing the appeal and awarding costs to the respondents.

What this practically means

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Mombasa (Kairu, Laibuta and Ngenye-Macharia, JJ.A) delivered on 24th April 2026. The dispute arises from succession proceedings over the estate of Christine Mutio Musembi in the Chief Magistrate's Court at Malindi, in which the appellant obtained a confirmed grant of letters of administration. After the Magistrate dismissed the respondents' application to revoke the grant, the respondents appealed to the High Court at Malindi and obtained ex parte interim injunctive orders on their application dated 14th June 2023. The appellant applied on 26th June 2023 to set aside those orders. When the application came up on 20th July 2023, Githinji, J., who was exhausted after mentioning other matters, directed the parties to file written submissions and fixed the ruling for 18th September 2023. The appellant appealed to the Court of Appeal on ten grounds, condensed to six, complaining principally that the Judge refused an inter partes hearing, that the ex parte injunction exceeded the 14-day limit under Order 40 rule 4(2), that the application was res judicata, and that the Judge was biased. The Court framed a single issue: whether the Judge erred in not hearing the parties inter partes when the application was scheduled for further orders. Holding that administrative case-management directions do not determine substantive rights and are not appealable as of right, and that the right of appeal is statutory and cannot be inferred, the Court found no merit in the appeal, dismissed it, and awarded costs to the respondents. The High Court directions themselves were not disturbed.

Questions the Court framed

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

  1. 1.Whether the learned Judge (Githinji, J.) erred in not hearing the parties inter partes on the appellant's application dated 26th June 2023 when it was scheduled for further orders
  2. 2.Whether administrative case-management directions directing filing of submissions and fixing a ruling date are appealable as of right

Key legal issues

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01

Whether a party may appeal as of right against case-management directions directing the filing of submissions and fixing a ruling date

Holding

No. Such directions are purely administrative, do not determine any substantive right, and are not appealable without leave; the right of appeal is statutory and cannot be inferred

Reasoning

Order 43 Rule 1 of the Civil Procedure Rules enumerates the orders appealable as of right under section 75(1)(h) of the Civil Procedure Act. Administrative directions issued for case management are intended to fast-track the disposal of justice and are issued at the court's discretion consistent with Article 159 of the Constitution. Drawing on Gilbert v Endean and re Coles and Ravenshear, the Court held that only an order conclusively determining or materially affecting substantive rights is appealable. The directions here were not dispositive and no party was locked out of the seat of justice.

p. 5

Legal principles established

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  • Administrative or case-management directions that merely regulate the conduct or timetable of proceedings without determining any substantive right are not appealable as of right; only orders that determine or materially affect the rights of a party are appealable
  • The right to appeal is conferred by statute and cannot be inferred; appeals from orders other than those specified under Order 43 Rule 1 of the Civil Procedure Rules lie only with leave of the court

Court orders

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  1. 1.The appeal was dismissed
  2. 2.Costs of the appeal awarded to the respondents

The bench

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

majority
majority
On appeal from
High Court of Kenya at Malindi
Civil Appeal No. 89 of 2022 (interlocutory directions of Githinji, J.)
Jurisdiction invoked
Section 75(1)(h) of the Civil Procedure Act, Cap 21 as read with Order 43 Rule 1 of the Civil Procedure Rules

Relief refused

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Appeal against the High Court directions of 20th July 2023 (filing of submissions and ruling date)

The directions were purely administrative and non-appealable as they did not determine any substantive right; the appeal lacked merit

p. 6

Dismissal of the respondents' application dated 14th June 2023 as res judicata

Sought as a prayer by the appellant; not granted, the appeal having been dismissed

Costs

Costs of the appeal awarded to the respondents

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.

As a general principle in civil procedure, court Directions or case management directions are purely administrative— that is to that directions that merely regulate the conduct or timetable of proceedings without determining any substantive right of the parties — and are ordinarily not subject to appeal.
p. 5Non-appealability of case-management directions
Therefore, the right to appeal is conferred by statute and cannot be inferred.
p. 5Statutory basis of the right of appeal
Only an order that determines or materially afiects the rights of a party is susceptible to appeal.
p. 6Appealability threshold drawn from Gilbert v Endean
In conclusion, we find no merit in the appeal and the same is hereby dismissed with costs to the respondents.
p. 6Final orders - dismissal with costs

Issues in the judgment

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minor

The judgment records a High Court ruling dated 5th March 2024 said to have resolved the bias complaint, but notes it is not in the record before the Court

minor

The High Court record quoted in the judgment contains an internally inconsistent date: the ruling was said to be on 18/9/2022 though the events occurred in 2023

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, "Lulu v Njenga & another (Civil Appeal E036 of 2023) [2026] KECA 779 (KLR)", Case Analysis (2026). Civil Appeal (from Malindi High Court Civil Appeal No. 89 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/779/eng@2026-04-24

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