MARGARET MAKHANJU JOHN vs DAVID JOHN KIBWANA (EXECUTOR) [1997] KECA 213 (KLR)
The bottom line
#The Court of Appeal dismissed a bid to appeal a succession case because the High Court struck out her leave application instead of properly hearing and refusing it.
What this practically means
#Executive summary
#Key legal issues
#Effect of the superior court striking out, rather than refusing, an application for leave to appeal
The application to the Court of Appeal fails because the superior court never heard and decided the application for leave; it merely struck it out for being defective, which does not satisfy Rule 39(b).
Rule 39(b) of the Court of Appeal Rules requires that where leave must first be sought in the superior court, that application must be considered and refused before the applicant may renew it in the Court of Appeal. Ang'awa, J did not hear and determine the application; she struck it out as merely defective, a course the Court viewed with some misgivings. Because the statutory precondition was not met, the renewed application could not succeed.
Whether an automatic right of appeal exists from probate rulings of the High Court to the Court of Appeal
No automatic right of appeal exists under the Law of Succession Act from a ruling or order of the superior court to the Court of Appeal without leave of either court.
The applicant grounded her application on the absence of any express provision in the Law of Succession Act granting an automatic right of appeal from a ruling or order of the superior court. The Court proceeded on the basis that leave was required, and since the leave application in the superior court was struck out rather than considered and refused, the route to this Court under Rule 39(b) was not opened.
Legal principles established
#- Where an application for leave to appeal must in the first instance be made to the superior court, that court must consider and refuse the application; striking it out as defective does not satisfy the precondition for a fresh application to the Court of Appeal.
- There is no automatic right of appeal to the Court of Appeal from a ruling or order of the superior court under the Law of Succession Act without leave of either court.
Court orders
#- 1.The application for leave to appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Mombasa
- P & A Cause No. 258 of 1993
- Jurisdiction invoked
- Rule 39(b) of the Court of Appeal Rules (application for leave to appeal where leave is first to be sought in the superior court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "MARGARET MAKHANJU JOHN vs DAVID JOHN KIBWANA (EXECUTOR) [1997] KECA 213 (KLR)", Case Analysis (1997). Civil Application No. NAI. 314 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/213/eng@1997-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.