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Court of AppealAllowedCivil Application No. NAI 231 of 2010 (UR 25/2014)· [2015] KECA 738 (KLR)

John Ndungu Wainaina & 2 others v Mary Njeri Kimuyu [2015] KECA 738 (KLR)

Court of Appeal
8 May 2015
KKKihara KariukiWilliam OukoW. OukoSKS. Gatembu Kairu
664 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal a High Court probate decision without first getting permission (leave) — and it struck out the appeal.

What this practically means

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Executive summary

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This was an application to the Court of Appeal at Nairobi to strike out a notice of appeal filed by the respondent, Mary Njeri Kimuyu, against a judgment of Rawal, J. dated 24 November 2009 in High Court Succession Cause No. 1725 of 1997, in which the estate comprising Title No. Githunguri/Kimathi/127 was ordered to be sub-divided and distributed equally between the applicants and the respondent. The notice of appeal was filed on 15 December 2009, and the applicants applied nearly a year later, in October 2010, to strike it out on the ground that an order in a probate and administration matter is appealable only with leave, which had never been obtained. The application, expressed under Rule 80 but properly founded on Rule 84 of the Court of Appeal Rules, was unopposed; the respondent's advocates neither attended nor filed any affidavit in opposition. Counsel for the applicants relied on three pre-2010 Constitution authorities, and the court noted that its own more recent decisions, including the Estate of Omar Abdalla Taiba and Rhoda Wairimu Karanja, had reaffirmed the leave requirement. The court found that the respondent had not demonstrated that she had obtained leave to challenge the High Court decision, held the notice of appeal to be incompetent, and struck it out with costs on 8 May 2015. The ruling binds lower courts and parties to the proposition that appeals from High Court probate and administration decisions lie only with leave of the High Court or the Court of Appeal.

Key legal issues

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01

Whether leave is a mandatory prerequisite to an appeal from a High Court probate and administration decision

Holding

Yes. Without leave from the High Court or the Court of Appeal, a notice of appeal against a probate decision is of no effect and liable to be struck out. The respondent did not demonstrate that she had obtained leave, so the notice of appeal was struck out.

Reasoning

The court noted that the authorities relied on by the applicants, though decided before the 2010 Constitution, were consistent with the Court's own more recent decisions, which have reaffirmed that probate appeals require leave. Since the respondent, though served, neither opposed the application nor filed any affidavit, and adduced no evidence of leave, the notice of appeal was incompetent and was struck out with costs.

p. 2

Legal principles established

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  • Appeals to the Court of Appeal from decisions of the High Court in probate and administration matters can only be brought with leave of the Court of Appeal or of the High Court; a notice of appeal filed without such leave is incompetent and may be struck out.

Court orders

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  1. 1.The notice of appeal filed on 15th December 2009 is struck out with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 80
  • Court of Appeal RulesRule 84
  • Constitution of Kenya 2010promulgation referenced

Cases cited (5)

  • Makhangu v Kibwana
    (1995-1998) I EA 175
  • Kiboi v Kiboi & others
    (2003) 2 EA 472
  • Karani v Waruguru & Another
    (2006) I EA 92
  • In the Matter of the Estate of Omar Abdalla Taiba (Deceased) Hafswa Omar Taib & others v Swaleh Abdalla Taib
    Civil Appeal No. Mld 22 of 2014
  • Rhoda Wairimu Karanja v Mary Wangui Karanja
    Civil Application No. Nai 69 of 2014
On appeal from
High Court of Kenya at Nairobi
H.C. Succ. Cause No. 1725 of 1997 (In the Matter of the Estate of Mugure Gachanja)
Jurisdiction invoked
Court of Appeal Rules (application to strike out a notice of appeal, expressed under Rule 80; the court identified Rule 84 as the applicable provision)

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, "John Ndungu Wainaina & 2 others v Mary Njeri Kimuyu [2015] KECA 738 (KLR)", Case Analysis (2015). Civil Application No. NAI 231 of 2010 (UR 25/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/738/eng@2015-05-08

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