Julius Chilumo Lulu v Florence Nicole Njenga & 1 other
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
#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
- 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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Chilumo Lulu v Florence Nicole Njenga & 1 other", 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.