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Court of AppealDismissedCivil Application (Motion filed 21st December, 2018)· [2019] KECA 316 (KLR)

Khadija Shariff Omar & another v Mohamed Shariff [2019] KECA 316 (KLR)

Court of Appeal of Kenya
11 October 2019
FSF. Sichaale
1,671 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that appeals from High Court succession decisions require prior leave, and without it, extension of time cannot be granted.

What this practically means

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Executive summary

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Khadija Shariff Omar and her son Kamal Shariff Omar, holders of a grant of letters of administration intestate that was revoked by Ougo, J on 26th February 2015, sought extension of time to file an appeal against that ruling and leave to file their memorandum of appeal out of time. A notice of appeal had been lodged in April 2015 but was never served on the respondent, and the appeal was never filed. An earlier application was withdrawn when the applicants realised the omission to serve; leave to serve the notice of appeal out of time was later granted by Githinji JA on 29th November 2018. The respondent opposed, arguing the applicants had no right of appeal from a succession matter, had not met the conditions for extension of time, were making piecemeal applications, and that the delay of four years was inordinate. Sichale JA framed the decisive question as jurisdiction. Relying on the Court's established line of authority, including Hafswa Omar Abdalla Taib, Makhangu v Kibwana, Francis Gachoki Murage and Rhoda Wairimu Karanja, the court held that there is no automatic right of appeal to the Court of Appeal from a High Court decision in a succession cause in its original jurisdiction; such an appeal lies only with leave of the High Court, under sections 47 and 50 of the Law of Succession Act read with sections 66 and 75 of the Civil Procedure Act and Order 43 of the Civil Procedure Rules. Since the applicants had never obtained leave to appeal, the Court lacked jurisdiction to extend time. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether an appeal lies as of right to the Court of Appeal from the High Court in the exercise of its original jurisdiction in a succession cause

Holding

No. Appeals from the High Court's original jurisdiction in succession matters lie only with leave of the High Court (or of the Court of Appeal where leave is refused); sections 47 and 50 of the Law of Succession Act provide no automatic right of appeal

Reasoning

The court adopted its prior jurisprudence, including Hafswa Omar Abdalla Taib, Makhangu v Kibwana, Francis Gachoki Murage and Rhoda Wairimu Karanja, holding that where a statute is silent on a right of appeal, an aggrieved party must seek leave from the court whose decision is impugned or from the appellate court. Order 43 rule 3 of the Civil Procedure Rules requires an application for leave to be made in the first instance to the court making the order sought to be appealed from.

p. 3
02

Whether the Court could extend time to file the appeal where leave to appeal had never been obtained

Holding

It could not. Jurisdiction to extend time presupposes jurisdiction over the intended appeal, which was absent

Reasoning

The court reasoned that jurisdiction is everything: since the applicants had no automatic right of appeal and had not first sought and obtained leave from the High Court as required, the Court of Appeal had no jurisdiction to grant the extension of time sought, notwithstanding the applicants' explanations for the delay.

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; there is no automatic right of appeal
  • Extension of time to appeal can only be granted where the Court has jurisdiction over the appeal; where no right or leave to appeal exists, the jurisdiction to extend time is absent

Court orders

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  1. 1.The motion seeking extension of time to file the appeal and leave to file the memorandum of appeal out of time is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Law of Succession ActSection 50
  • Law of Succession ActSection 47
  • Civil Procedure ActSection 75
  • Civil Procedure ActSection 66
  • Civil Procedure RulesOrder 43, including rule 3

Cases cited (5)

  • Hafswa Omar Abdalla Taib & 2 others vrs. Swaleh Abdalla Taib
    [2015] eKLR
  • Makhangu vs. Kibwana
    [1996-1998] I E.A 168
  • Kaboi vs. Kaboi & Others
    [2003] E.A 472
  • Francis Gachoki Murage vs. Juliana Wainoi Kinyua & another
    Civil Appeal (Application) No. 139 of 2009 (UR)
  • Rhoda Wairimu Karanja vs. Mary Wangui Karanja & Another
    [2014] eKLR
On appeal from
High Court of Kenya
Jurisdiction invoked
Section 50 and 47 of the Law of Succession Act; sections 75 and 66 of the Civil Procedure Act; Order 43 rule 3 of the Civil Procedure Rules

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, "Khadija Shariff Omar & another v Mohamed Shariff [2019] KECA 316 (KLR)", Case Analysis (2019). Civil Application (Motion filed 21st December, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/316/eng@2019-10-11

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