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Court of AppealStruck OutCivil Appeal No. 22 of 2014· [2015] KECA 871 (KLR)

Hafswa Omar Abdalla Taib & 2 others v Swaleh Abdalla Taib [2015] KECA 871 (KLR)

Court of Appeal
12 March 2015
HOH. M. OkwenguASAsike-MakhandiaFSF. Sichale
2,915 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal struck out a succession appeal because the family never got the High Court's permission (leave) to appeal first.

What this practically means

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Executive summary

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The deceased, Omar Abdalla Taib, died intestate in February 2012. The appellants, his children, obtained letters of administration and then took out a summons under section 45 of the Law of Succession Act and Rule 49 of the Probate and Administration Rules seeking to restrain the respondent, their paternal uncle and partner in Mombasa Cargo Tally Organisation, from intermeddling with the estate's 50% share in the company, and seeking weekly allowances, an injunction, freezing of accounts, an account of sums collected, and leave to wind up the company. After a consent recorded before Odero, J. on 28th August 2013 directing payment of Kshs.6,349,471/- to the estate, the dispute narrowed to a claim for goodwill, which the High Court dismissed in a ruling of 9th June 2014, holding that goodwill had neither been proved nor its value ascertained, and awarded costs to the respondent. The appellants appealed on ten grounds, largely attacking the finding on goodwill. The Court of Appeal, however, raised the question of its own jurisdiction sua moto. Relying on section 50 of the Law of Succession Act and its earlier decision in Makhangu v Kibwana, the court held that although an appeal lies to it from a High Court decision in a Succession Cause in the exercise of its original jurisdiction, there is no automatic right of appeal and leave of the High Court must first be obtained. Article 164(3) of the Constitution does not confer an unrestricted right of appeal. Since the appellants had never sought or obtained such leave, the appeal was incompetent and was struck out with no order as to costs, the jurisdictional issue not having been canvassed by any party.

Key legal issues

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01

Whether the Court of Appeal has jurisdiction to entertain an appeal from a High Court decision in a Succession Cause without leave

Holding

The court held that it has jurisdiction over such appeals only where leave of the High Court has been obtained; since the appellants never obtained leave, the appeal was incompetent and was struck out

Reasoning

Section 50 of the Law of Succession Act makes decisions of the magistrates' courts in Succession Causes appealable to the High Court, whose decision on such appeal is final, and provides no appeal to the Court of Appeal from the High Court's original jurisdiction. Relying on Makhangu v Kibwana and subsequent authorities, the court confirmed that an appeal lies but only with leave of the High Court, whose granting is discretionary. No leave was sought or obtained here, so the appeal was struck out.

p. 5
02

Whether the court could raise the jurisdictional issue suo moto where no party raised it

Holding

Yes - jurisdiction is a question of law that the court may raise and determine on its own motion

Reasoning

Although neither party raised the question of the court's jurisdiction, the court held that it is a settled issue of law and parties are deemed to know the law. The court accordingly invoked its power to determine jurisdiction sua moto before entertaining the merits of the goodwill dispute.

p. 3
03

Whether the High Court erred in disallowing the claim for goodwill

Holding

Not determined - the appeal was struck out for want of jurisdiction before the merits were reached

Reasoning

The parties extensively canvassed whether goodwill existed and was proved by the audit reports, and the respondent argued that no prayer for goodwill had been pleaded and that the court's jurisdiction on an originating summons by a partner is limited. The Court of Appeal did not decide any of these issues because it found the appeal incompetent for want of leave.

p. 3

Legal principles established

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  • An appeal lies to the Court of Appeal from a decision of the High Court in a Succession Cause in its original jurisdiction, but only with leave of the High Court, or if refused, with leave of the Court of Appeal; there is no automatic right of appeal
  • Where a right of appeal is not expressly provided for by statute, the aggrieved party must seek leave to appeal, and the granting of leave is a discretionary power of the court
  • A court's jurisdiction flows from the Constitution, statute or precedent and cannot be assumed or donated by the parties or by the fiat of the court; where a court has no jurisdiction it must down its tools
  • Article 164(3) of the Constitution does not confer an unlimited right of appeal to the Court of Appeal that cannot be restricted by statute

Court orders

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  1. 1.The appeal is struck out as incompetent
  2. 2.No order as to costs

Authorities

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Legislation

  • Law of Succession Actsection 45
  • Law of Succession Actsection 45(2)
  • Law of Succession Actsection 47
  • Law of Succession Actsection 50
  • Probate and Administration RulesRule 49
  • Civil Procedure Actsection 66
  • Civil Procedure Actsection 75
  • Constitution of KenyaArticle 164(3)

Cases cited (9)

  • Commissioner of Inland Revenue v Muther & Co Margarire Ltd
    (1901) AC 217
  • CDL Hotels International Ltd v Pontiac Marina Pty Ltd
    (2000) I LRC 243
  • Tripple Five Corporation v Ralt Disney Productions
    (1994) ABCA 120
  • Kibutiri v Kibutiri
    (1983) KLR 62
  • Makhangu v Kibwana
    (1996-1998) I E.A. 168
  • Kaboi v Kaboi & Others
    (2003) EA 472
  • Francis Gachoki Murage v Juliana Wainoi Kinyua & Another
    Civil Appeal (Application) No.139 of 2009 (UR)
  • Rhoda Wairimu Karanja v Mary Wangui Karanja & Another
    (2014) eKLR
  • Equity Bank Limited v West Link MBO Limited
    Civil Application No.78 of 2011
On appeal from
High Court of Kenya at Mombasa
Mombasa H.C. Succession Cause No. 103 of 2012
Jurisdiction invoked
Section 50 of the Law of Succession Act and Article 164(3) of the Constitution of Kenya; the court found no automatic right of appeal without leave of the High Court

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, "Hafswa Omar Abdalla Taib & 2 others v Swaleh Abdalla Taib [2015] KECA 871 (KLR)", Case Analysis (2015). Civil Appeal No. 22 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/871/eng@2015-03-12

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