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Court of AppealDismissedCivil Appeal No. 145 of 2012 (consolidated with Civil Appeal No. 146 of 2012)· [2014] KECA 827 (KLR)

Floris Pierro & another v Giancarlo Falasconi (as the administrator of the estate of Santuzza Billioti alias Mei Santuzza) [2014] KECA 827 (KLR)

Court of Appeal of Kenya
7 February 2014
HOH. M. OkwenguASAsike-MakhandiaFSF. Sichale
3,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed two appeals because the lawyers left the court order out of the appeal record — sloppiness was fatal.

What this practically means

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Executive summary

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Two consolidated appeals (Civil Appeals Nos. 145 and 146 of 2012) challenged a ruling of Meoli, J. in the High Court at Malindi in Succession Cause No. 61 of 2011, which granted an injunction restraining the appellants from dealing with land parcels Chembe/Kibabamshe/520 and 530 pending determination of a succession cause, and directed priority hearing of an application to set aside an interlocutory judgment and decree in the Chief Magistrate's Court. The parcels had been sold in public auction in execution of a judgment obtained against the deceased after her death, and bought by the appellants under vesting orders. The Court of Appeal affirmed the High Court on the central question, holding that section 47 of the Law of Succession Act read with rule 73 of the Probate and Administration Rules empowers the court to grant injunctions in succession causes. On the merits, the Court found the respondent had made out a prima facie case given allegations that the appellants conspired with the plaintiff in the subordinate court to mount a suit against a deceased person and procured service and judgment fraudulently; such abuse of judicial process alone warranted intervention. The Court also upheld the respondent's objections that the records of appeal omitted the certified order appealed from, contrary to the mandatory rule 87(1)(h), rendering them fatally defective, and that the supplementary records were filed out of time without leave and were irregularly on record. The Court declined to invoke Article 159 or the overriding objective to cure these omissions, holding they are not a panacea for advocates' negligence. Both appeals were dismissed with costs to the respondent, delivered at Mombasa on 7th February 2014.

Key legal issues

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01

Jurisdiction to grant injunctions in a succession cause

Holding

The High Court may grant injunctions in succession causes; rule 73 preserves inherent jurisdiction and section 47 of the Law of Succession Act confers all-embracing powers

Reasoning

The Court agreed with Meoli, J. that rule 73 of the Probate and Administration Rules reserves the court's inherent jurisdiction, and that section 47 of the Law of Succession Act empowers the court to pronounce such decrees and orders as may be expedient, which cannot exclude injunctive orders. The two provisions must be read together to safeguard the deceased's estate.

p. 4
02

Application of Giella v Cassman Brown principles on the material

Holding

The respondent established a prima facie case with probability of success given allegations of fraud and abuse of judicial process; the remaining Giella limbs need not have been considered

Reasoning

The Court found serious questions of integrity in the suit against a deceased person, including an affidavit by Mwambire admitting the suit was financed by the 1st appellant. Such abuse of judicial process warrants the court's intervention per se, and once a prima facie case is made on such grounds, consideration of damages and balance of convenience was unnecessary.

p. 5
03

Effect of omitting the order appealed from from the record of appeal

Holding

The omission renders the record fatally defective and the appeal liable to be struck out; rule 87 is mandatory

Reasoning

The order embodies the court's decision and is a primary document. The Court of Appeal should not have to comb a ruling to decipher what was decided below. The Court relied on its own unreported decisions (Nuru Ibrahim Amordim; Mark Odhoch Oyeke; Cosmas Buluma) for the proposition that an appeal lies against a decree or order, not a judgment or ruling.

p. 5
04

Late supplementary record of appeal without leave

Holding

A supplementary record filed more than fifteen days after the initial record requires leave; filed without leave it is irregularly on record and must be struck out

Reasoning

Rule 88 permits a supplementary record without leave only within fifteen days of lodging the record of appeal. The appellants filed theirs about a month later, never sought or obtained leave, and their invocation of rule 34 failed because that rule merely deals with preparation of orders.

p. 5

Legal principles established

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  • The High Court has jurisdiction to grant injunctive orders in a succession cause under section 47 of the Law of Succession Act read with rule 73 of the Probate and Administration Rules
  • A record of appeal that omits the certified decree or order appealed from is fatally defective and liable to be struck out, rule 87(1)(h) being mandatory
  • A supplementary record of appeal may be filed without leave only within fifteen days of lodging the record of appeal; beyond that, leave of the Court is required
  • Article 159 and the overriding objective are not a panacea for advocates' negligence or omission of primary documents from a record of appeal

Court orders

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  1. 1.The supplementary record of appeal filed without leave is struck out
  2. 2.Both appeals are dismissed with costs to the respondent

Authorities

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Legislation

  • Probate and Administration Rulesrule 73
  • Probate and Administration Rulesrule 63
  • Law of Succession Actsection 47
  • Law of Succession Actsection 77
  • Law of Succession Actsection 45
  • Civil Procedure Rulesorder 21 rule 79
  • Registered Land Act (now repealed)sections 143 and 159
  • Court of Appeal Rulesrule 94
  • Court of Appeal Rulesrule 85(1)(h)
  • Court of Appeal Rulesrule 87(1)(h)
  • Court of Appeal Rulesrule 88
  • Court of Appeal Rulesrule 34
  • Constitution of KenyaArticle 159
  • Appellate Jurisdiction Actsections 3A and 3B
  • Civil Procedure Actsections 1A and 1B

Cases cited (4)

  • Giella v Cassman Brown Ltd
    [1973] E.A. 358
  • Nuru Ibrahim Amordim vs Amir Mohammed Amir
    Civil Application No. 23 of 1998 (UR)
  • Mark Odhoch Oyeke v Job Okuna Oyugi & Others
    Civil Appeal No. 89 of 2001 (UR)
  • Cosmas Buluma & Others vs Odwagi Irinye Namulanda
    Civil Appeal No. 280 of 1999 (UR)
On appeal from
High Court of Kenya at Malindi
H.C. Succession Cause No. 61 of 2011 (ruling dated 9th December 2011)
Jurisdiction invoked
Appellate jurisdiction under the Appellate Jurisdiction Act and the Court of Appeal Rules (specific provision not stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Floris Pierro & another v Giancarlo Falasconi (as the administrator of the estate of Santuzza Billioti alias Mei Santuzza) [2014] KECA 827 (KLR)", Case Analysis (2014). Civil Appeal No. 145 of 2012 (consolidated with Civil Appeal No. 146 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/827/eng@2014-02-07

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