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Court of AppealDismissedNot stated in the judgment (application dated 10th July 2025)

Wanjiku v Kingi (Civil Application E070 of 2025) [2025] KECA 1675 (KLR)

Court of Appeal of Kenya
21 October 2025
1,155 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a leave-to-appeal application because the applicant failed to attach the High Court ruling that had refused her leave.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal at Nakuru, delivered by M. Warsame, JA, on an application dated 10th July 2025 by Mary Wanjiku seeking leave to appeal against a ruling of 15th August 2024 by Hon. Justice S.M. Mohochi in a succession dispute over the intestate estate of Melchizedek Kingi Gideon. The applicant, who claimed to be the deceased's second wife, had her claim as a wife dismissed by the trial court, which nonetheless recognized her child as a beneficiary. She stated she was unaware of the ruling until March 2025 due to illness, and her application for leave in the High Court was refused on 26th June 2025. She then brought this application under Rule 41(b)(ii). The court found the application fatally defective: it annexed the High Court ruling of August 2024, medical records, and a draft memorandum of appeal, but not the High Court's ruling refusing leave, which Rule 45(3)(b) requires. The court held this requirement is substantive, not a procedural technicality, because without the refusal ruling it cannot verify the leave application's existence, grounds, or the High Court's reasons. The applicant had fourteen days to obtain the certified copy and a further opportunity under Rule 45(4) to file it at least twenty-four hours before the hearing, neither of which was used, with no explanation. The application was dismissed with no orders as to costs. No authorities were cited in the judgment.

Questions the Court framed

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

  1. 1.Whether the applicant complied with Rule 45(3) and Rule 45(4) of the Court of Appeal Rules, 2022 by annexing the High Court ruling refusing leave to appeal
  2. 2.Whether the application for leave to appeal can be entertained in the absence of the ruling refusing leave

Key legal issues

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01

Whether an application for leave to appeal, where leave has been refused by the superior court, may be entertained without annexing the ruling refusing leave.

Holding

No. Rule 45(3)(b) requires the ruling refusing leave to accompany the application, and Rule 45(4) provides the only mechanism for late filing, at least twenty-four hours before the hearing. Failure to produce the ruling is fatal to the application.

Reasoning

The court enumerated the difficulties it faces without the refusal ruling: it cannot verify whether leave was sought, on what grounds, what reasons the High Court gave, whether the refusal was procedural or substantive, or whether special circumstances warrant a different view. The applicant had fourteen days to obtain a certified copy and a further Rule 45(4) opportunity, neither of which was used, and no explanation or application to file the missing document was made.

p. 2

Legal principles established

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  • The requirement under Rule 45(3)(b) to annex the decision refusing leave is a substantive requirement that cannot be waived in the interests of justice.

Court orders

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  1. 1.The application for leave to appeal is dismissed with no orders as to costs

The bench

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

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority

Wrote the judgment

On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Article 159(2)(d) of the Constitution of Kenya 2010; Section 3A of the Appellate Jurisdiction Act; Rule 41(b)(ii) of the Court of Appeal Rules, 2022

Relief refused

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Leave to appeal against the High Court ruling of 15th August 2024

The applicant failed to annex the High Court's ruling refusing leave as required by Rule 45(3)(b) and did not avail herself of Rule 45(4)

p. 3

Costs

Dismissed with no orders as to costs.

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.

In my view, the requirement under Rule 45(3)(b) is not a procedural technicality that can be dispensed with in the interests of justice. It is a substantive requirement that ensures the proper administration of justice and enables this Court to properly discharge its function.
p. 3Mandatory nature of Rule 45(3)(b)
Rule 45(3) uses mandatory language: the application 'shall' be accompanied by the specified documents 'where practicable.'
p. 3Statutory interpretation of Rule 45(3)
In the end I find that this application is for dismissal and cannot be entertained by this Court. It is dismissed with no orders as to costs.
p. 3Final orders and costs

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, "Wanjiku v Kingi (Civil Application E070 of 2025) [2025] KECA 1675 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 10th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1675/eng@2025-10-21

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