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Court of AppealDismissedCivil Application No. 72 of 2018 (UR. 47/2018)

Johnstone Ombima Okwaro & another v Dorcas Okwaro & 2 others [2019] KECA 134 (KLR)

Court of Appeal
21 November 2019
1,861 words in judgment
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The bottom line

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The Court of Appeal confirmed that succession appeals to it require leave first — without it, a stay application fails.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Asike-Makhandia, Kiage and Otieno-Odek, JJ.A) on an application under rules 1(2), 5(2)(b) and 42 of the Court of Appeal Rules seeking stay of execution of a ruling by Majanja, J. dated 20th December 2017 in Kisumu Succession Cause No. 109 of 1987, which distributed the estate of the deceased on the basis of a consent letter. The applicants contended that the 2nd applicant, a daughter of the deceased, was not a party to the consent and received nothing from the estate, and that their DNA-testing request was wrongly refused. The respondents opposed, arguing that no leave to appeal had been sought or granted as required in succession matters, that the application was filed after an inordinate eight-month delay, and that neither arguability nor prejudice was demonstrated. The Court took the opportunity to resolve a long-standing uncertainty on whether an appeal lies as of right to the Court of Appeal from High Court decisions in succession causes. It adopted the line of authority in Julius Kamau Kithaka and Rhoda Wairimu Kioi, holding that appeals from the High Court exercising original jurisdiction under the Law of Succession Act lie only with leave. Since the applicants had not obtained leave, the Court doubted whether the intended appeal was arguable and did not consider the nugatory limb. The application was dismissed with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have satisfied the laid down principles for the grant of stay of execution pending appeal or intended appeal
  2. 2.Whether an appeal lies to the Court of Appeal as of right against decisions of the High Court exercising original jurisdiction in succession causes, or only with leave

Key legal issues

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01

Whether leave is required before appealing to the Court of Appeal from a High Court decision in a succession cause

Holding

Leave of the High Court (or of the Court of Appeal where leave is refused there) is required; there is no automatic right of appeal under the Law of Succession Act.

Reasoning

The Court noted that Section 50 of the Law of Succession Act is silent on appeals from the High Court to the Court of Appeal where the High Court exercises original jurisdiction. Two lines of authority conflicted. The Court preferred the later decisions (Kithaka and Kioi), holding that the Law of Succession Act must be strictly construed and that leave promotes finality and expedition in probate disputes.

p. 3
02

Whether the applicants satisfied the rule 5(2)(b) principles for stay pending intended appeal

Holding

They did not; without leave, the intended appeal could not be said to be arguable, so the nugatory aspect need not be considered.

Reasoning

The Court found that leave had been obtained neither in the High Court nor in the Court of Appeal. It therefore doubted whether the intended appeal would be arguable, one of the two limbs of the rule 5(2)(b) test, and declined to exercise its discretion in the applicants' favour without addressing the nugatory-prong.

p. 3

Legal principles established

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  • Appeals from the High Court to the Court of Appeal in succession causes, where the High Court exercises its original jurisdiction, lie only with the leave of the High Court (or of the Court of Appeal if leave is refused); there is no automatic right of appeal.

Court orders

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  1. 1.The application dated 31st July 2018 seeking stay of execution pending appeal is dismissed with no order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya at Kisumu
Succession Cause No. 109 of 1987
Jurisdiction invoked
Rules 1(2), 5(2)(b) and 42 of the Court of Appeal Rules

Relief refused

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Stay of execution of the High Court ruling of 20th December 2017 pending the hearing and determination of the intended appeal

The applicants failed to satisfy the principles under rule 5(2)(b): leave to appeal had not been obtained, so the intended appeal could not be shown to be arguable, and the nugatory-prong need not be addressed.

p. 4

Costs

No order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

there is need and indeed legal requirement that appeals from the High Court to the Court of Appeal in succession causes lie with the leave of the High Court.
p. 3Leave requirement for succession appeals to the Court of Appeal
Leave to appeal will normally be granted where prima facie it appears that there are grounds which merit serious judicial consideration.
p. 3Test for grant of leave in succession matters (as stated in Kioi)
It is trite law that where any proceedings are governed by a special act of parliament like in this case, the Law of Succession Act, the provisions of such an Act must be strictly construed and applied
p. 3Strict construction of special statutes (Kithaka principle)
The application having failed to meet the expectations and principles laid down under rule 5(2) (b) of this Court's rules, it is dismissed with no order as to costs.
p. 4Final orders - dismissal of the stay application

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, "Johnstone Ombima Okwaro & another v Dorcas Okwaro & 2 others [2019] KECA 134 (KLR)", Case Analysis (2019). Civil Application No. 72 of 2018 (UR. 47/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/134/eng@2019-11-21

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