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Court of AppealStruck OutCivil Appeal No. 203 of 2014· [2020] KECA 521 (KLR)

Francis Macharia Karanja & 6 others v Virginia Muthoni Karanja

Court of Appeal of Kenya
10 July 2020
PKP. O. KiageASAsike-MakhandiaODOdek
1,815 words in judgment
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The bottom line

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The Court of Appeal struck out a family succession appeal because the parties never obtained the mandatory leave to appeal, so the High Court's decision upholding the will stands.

What this practically means

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Executive summary

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The deceased, Sebastian Karanja Macharia, died testate in April 2000 leaving a widow (the respondent), a former wife (the 2nd appellant), and children. His executor obtained probate in Succession Cause No. 1440 of 2000 before the High Court. The appellants, through the 1st appellant as objector, applied under section 26 of the Law of Succession Act for reasonable provision for themselves and their mother and challenged the will's bequests. On 14th November 2011 Maraga J dismissed the application, holding that the appellants failed to demonstrate any need for provision beyond what the will gave them, and ordered the estate to devolve as stated in the will. The appellants appealed on three condensed grounds: disinheritance of the former wife, misinterpretation of the Succession Act, and failure to find intermeddling. Before reaching the merits, Kiage JA raised sua sponte a fundamental jurisdictional issue: under sections 47 and 50 of the Law of Succession Act as construed in Rhoda Wairimu Karanja and John Mwita Murimi, no appeal lies to the Court of Appeal from a High Court decision in a succession cause without leave. The record showed that the appellants neither sought leave from the High Court nor moved this Court for it. The appeal was therefore incompetent and was struck out. Because the matter was a family dispute and the respondent had not raised the jurisdictional point, the Court made no orders as to costs. The judgment was delivered under Rule 32(3) of the Court of Appeal Rules, Odek JA having died before delivery; Asike-Makhandia JA concurred wholly. The High Court judgment stands undisturbed.

Key legal issues

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01

Jurisdiction of the Court of Appeal over succession matters without leave

Holding

The Court of Appeal has no jurisdiction to entertain an appeal from the High Court in a succession cause unless leave was obtained; the appellants sought no leave from the High Court nor moved this Court, so the appeal was incompetent.

Reasoning

Section 47 of the Law of Succession Act makes no provision for an appeal to the Court of Appeal from the High Court exercising original jurisdiction. The Court relied on Rhoda Wairimu Karanja and John Mwita Murimi, which construed Makhangu v Kibwana as establishing that an appeal lies only with leave. Although the respondent did not raise the point, jurisdiction is everything and the Court may act suo motu.

p. 3
02

Dependants' provision under section 26 and testamentary freedom

Holding

Not determined - the Court struck out the appeal without reaching the merits, so the High Court's dismissal of the section 26 application and upholding of the will were not reviewed.

Reasoning

The merits grounds (disinheritance of the former wife, alleged misinterpretation of the will, alleged intermeddling) were argued by counsel but were never adjudicated because the jurisdictional defect was fatal and had to be dealt with before the merits.

p. 2

Legal principles established

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  • No appeal lies to the Court of Appeal from a decision of the High Court exercising original jurisdiction under the Law of Succession Act unless leave of the High Court, or of the Court of Appeal where leave is refused, is first obtained; an appeal filed without leave is incompetent and must be struck out.
  • On a crucial question of jurisdiction, the Court may act on its own motion and raise and determine the issue even where no party has raised it.

Court orders

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  1. 1.The appeal is struck out for incompetence
  2. 2.No orders as to costs
On appeal from
High Court of Kenya at Nairobi
Succession Cause No. 1440 of 2000
Jurisdiction invoked
Jurisdiction considered under section 47 and section 50 of the Law of Succession Act; judgment rendered under Rule 32(3) of the Court of Appeal Rules following the death of Odek, JA. The Court found that its jurisdiction had not been validly invoked for want of leave.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Francis Macharia Karanja & 6 others v Virginia Muthoni Karanja", Case Analysis (2020). Civil Appeal No. 203 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/521/eng@2020-07-10

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