MWM v CAD (Civil Application E049 of 2025) [2025] KECA 1478 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the Court possessed jurisdiction to entertain the rule 5(2)(b) application
It did not, because the applicant failed to demonstrate a properly lodged, stamped, paid-for or served notice of appeal
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 31st January 2025 struck out
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Order that the child RJLD not be removed from the Court's jurisdiction
Same want of jurisdiction
Costs
Costs of the application to the respondent
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.
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.
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.
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
Issues in the judgment
#The judgment's opening paragraphs are blank; the case title and application number are not stated on the face of the copy provided
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.