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Court of AppealDismissedCivil Application No. NAI 82 of 1993· [1997] KECA 276 (KLR)
Milka Wanjiru Mathu v Wamuita Kamau
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·~1 min to read original · ~4 min briefThe bottom line
#Kenya's Court of Appeal dismissed a strike-out application because it was filed wrongly — applications touching an appeal must be filed within that appeal itself.
What this practically means
#Executive summary
#This is a very brief ruling of the Court of Appeal at Nairobi (Kwach, Shah and Pall, JJ.A.) delivered on 17 October 1997 in Civil Application No. NAI 82 of 1993. The applicant, Milka Wanjiru Mathu, brought an application seeking to have an appeal struck out. The court observed that the application did not even state the number of the appeal it targeted, and that unless such an application is filed in the appeal itself, the court is unable to decide on any ground advanced by the applicant. On that basis, and without any substantive consideration of the merits, the court dismissed the application and made no order as to costs. The ruling contains no citation of any authority or statutory provision, no separate opinions, and no dissent; it is a single judgment of the whole bench. Its binding significance lies in the procedural point that applications relating to an appeal must be filed within the appeal itself for the Court of Appeal to have the capacity to determine them. The decision below, if any, was not disturbed, as the court declined to engage with the substance of the application at all.
Key legal issues
#01
Whether the Court of Appeal could entertain an application for striking out an appeal that was not filed in the appeal itself
Holding
The application was dismissed because it was not properly constituted before the court
Reasoning
The applicant sought to have an appeal struck out, but the application did not state the number of the appeal and was not filed in the appeal itself. The court held that without the application being filed in the appeal, it was unable to decide on any ground advanced by the applicant. The application was therefore dismissed with no order as to costs.
p. 1
Legal principles established
#- An application relating to an appeal must be filed in the appeal itself; the Court of Appeal cannot determine an application that does not identify or lie within the appeal it seeks to affect
Court orders
#- 1.The application is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Not stated in the judgment; the court declined to exercise jurisdiction because the application was not filed in the appeal itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Milka Wanjiru Mathu v Wamuita Kamau", Case Analysis (1997). Civil Application No. NAI 82 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/276/eng@1997-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.