Zeinab Khalifa & 4 others v Abdulrazak Khalifa & another [2016] KECA 252 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that when the High Court refuses permission to appeal, you can ask the Court of Appeal directly within 14 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the application under rule 39 is unknown in law
The court rejected the second respondent's argument that the application was unknown in law. Rule 39(b) confers an original jurisdiction on the Court of Appeal, analogous to rule 5(2)(b), so the application is neither an appeal, a reference, nor a review; the second respondent's rule 4 authorities were irrelevant.
Rule 39(b) permits a party whose leave application was refused by the High Court to apply afresh to the Court of Appeal within 14 days. This application was filed exactly on the 14th day after Thande J.'s refusal, so it was properly before the Court. The authorities relied on by the second respondent concerned extension of time under rule 4, a different regime.
Whether leave to appeal should be granted
Leave was granted. The intended appeal raised arguable issues: whether joint administrators may act at cross-purposes, whether the court could grant first priority to purchase absent a prayer, whether affected beneficiaries were heard, and whether an administrator as trustee may purchase other beneficiaries' interests.
Applying Sango Bay Estate and Machira v Mwangi, the test is whether the intended appeal raises issues meriting serious judicial consideration. The court was persuaded the proposed issues were not frivolous and deserved to be heard on merit; even a single arguable issue would suffice. Leave under section 47 of the Law of Succession Act was required since there was no automatic right of appeal.
Legal principles established
#- An application for leave to appeal under rule 39(b), made to the Court of Appeal after refusal of leave by the High Court, is an original jurisdiction of the Court and is not an appeal, a reference, or an application for review.
- A party who applied to the High Court for leave to appeal and was refused may make a fresh application to the Court of Appeal within 14 days of the refusal.
- The main consideration on an application for leave to appeal is whether the intended appeal raises issues meriting serious judicial consideration; even a single such issue suffices, and leave may be granted on grounds of public interest or a novel point even where prospects are not shown.
- Outside section 47 of the Law of Succession Act, that Act does not provide for an automatic right of appeal from the High Court to the Court of Appeal, and leave is therefore required.
Court orders
#- 1.Leave granted to the applicants to appeal to the Court of Appeal against the decision of the High Court of 8 March 2013
- 2.Applicants directed to file and serve the Notice of Appeal within seven days from the date of the ruling
- 3.Applicants to file the record of appeal within 30 days from the date of filing of the Notice of Appeal
- 4.Costs of the application to abide the result of the intended appeal
- On appeal from
- High Court of Kenya at Mombasa
- Succession Cause No. 62 of 2000
- Jurisdiction invoked
- Rule 39(b) of the Court of Appeal Rules (original jurisdiction to grant leave to appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zeinab Khalifa & 4 others v Abdulrazak Khalifa & another [2016] KECA 252 (KLR)", Case Analysis (2016). Civil Application No. 20 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/252/eng@2016-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.