Margaret M. John v David J. Kibwana
The bottom line
#The Court of Appeal struck out a succession appeal because the appellant needed the court's permission first — appeals from orders, unlike decrees, require leave.
What this practically means
#Executive summary
#Key legal issues
#Right of appeal from orders of the High Court in succession matters
Section 47 of the Law of Succession Act uses both 'decrees' and 'orders'; appeals from decrees lie as of right under section 66 of the Civil Procedure Act, but appeals from orders lie only with leave under section 75(1)(h)
The court distinguished between the grant culminating from a petition, which was a decree, and the dismissal of the summons for revocation, which was an order. Section 75(1)(h) of the Civil Procedure Act limits appeals as of right from orders to those listed therein, and the dismissal order did not fall within them. Following the reasoning in Commission of Income Tax v Ramesh K Mennon on the effect of the word 'decree', the court held the present order was appealable only with leave.
Treatment of an incompetent appeal where counsel seeks withdrawal
An incompetent appeal cannot be withdrawn; it must be struck out
Counsel for the appellant realised during submissions that the appeal was incompetent for want of leave and applied to withdraw it on terms. The court held that withdrawal was not available for an incompetent appeal and struck the appeal out, awarding costs to the respondent.
Legal principles established
#- An appeal from an order of the High Court dismissing a summons for revocation or annulment of a grant under the Law of Succession Act lies to the Court of Appeal only with leave, not as of right
- An incompetent appeal cannot be withdrawn; it must be struck out
Court orders
#- 1.The appeal is struck out
- 2.Costs awarded to the respondent
- On appeal from
- High Court of Kenya at Mombasa
- P&A Cause No 258 of 1993
- Jurisdiction invoked
- Section 66 and section 75(1)(h) of the Civil Procedure Act (cap 21); section 47 of the Law of Succession Act (cap 160)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Francis Wesonga Odipo & Another v Ali Omondi Malachi & Another[2026] KECA 2023 (KLR)17 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Margaret M. John v David J. Kibwana", Case Analysis (1996). Civil Appeal 84 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/212/eng@1996-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.