Andrew Muciri Muriuki v Nancy Waguama Kareithi [2021] KECA 784 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that succession appeals need prior leave and strictly compliant notices of appeal, striking out a defective one.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal was invalid for want of lodging with and signature of the Registrar of the trial court and for failing to indicate whether the appeal is against the whole or part of the judgment
- 2.Whether an appeal lies to the Court of Appeal from a decision of the High Court in a succession cause without leave of the High Court or the Court of Appeal
Key legal issues
#Validity of the notice of appeal under Rule 75
The notice of appeal was incompetent: it lacked the Registrar's signature showing it was lodged with the trial court Registrar, and it was silent on whether the appeal was against the whole or part of the judgment.
Rules 75(1) and (3) require a notice of appeal to be filed with the Registrar of the trial court and to indicate whether the appeal is against the whole or part of the judgment. These requirements are mandatory. A close scrutiny of the notice showed the Registrar's signature was missing and the respondent did not counter that fact; the notice was also silent on scope. Both omissions violated the law.
Whether leave is required to appeal from a High Court succession decision
Leave of the High Court or of the Court of Appeal is a precondition to an appeal from a High Court decision in a succession cause; without it there is no legal basis for the appeal.
Relying on Rhoda Wairimu Kioi, the court held that under the Law of Succession Act there is no express automatic right of appeal to the Court of Appeal. Leave should be sought within 14 days of the ruling appealed against, from the trial court or this Court. The respondent obtained no such leave, so the appeal had no legal basis and the notice was struck out.
Legal principles established
#- There is no automatic right of appeal to the Court of Appeal from a decision of the High Court exercising original jurisdiction in succession matters; leave of the High Court or, if refused, of the Court of Appeal must first be obtained.
- The requirements of Rule 75 that a notice of appeal be filed with the Registrar of the trial court and state whether the appeal is against the whole or part of the judgment are mandatory; non-compliance renders the notice incompetent and liable to be struck out.
Court orders
#- 1.The application under Rule 84 is allowed on both grounds
- 2.The notice of appeal dated and filed on 23rd December 2019 is struck out for being incompetent
- 3.Costs of the application to the applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kerugoya
- H.C.C. Succession Cause No. 2 of 2019
- Jurisdiction invoked
- Rule 84 of the Court of Appeal Rules (application to strike out a notice of appeal); the substantive appeal jurisdiction would derive from the Law of Succession Act with leave under Rule 39(b)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result the application is merited and we allow it on both grounds with the consequence that the notice of appeal dated and filed herein on 23 rd December 2019 is struck out for being incompetent with costs to the applicant.
under the Law of Succession Act, there is no express automatic right of appeal to the Court of Appeal; that an appeal will lie to the Court of Appeal from the decision of the High Court, exercising original jurisdiction with leave of the High Court or where the application for leave is refused with leave of this court.
These provisions are couched in mandatory terms.
Issues in the judgment
#The case caption lists Andrew Muciri Muriuki as APPLICANT and Nancy Waguama Kareithi as RESPONDENT, but the body of the ruling states Nancy Waghuama Kareithi is the applicant who filed the motion, and the appeal is described as the respondent's, creating internal inconsistency in party designations.
The ruling is dated and delivered at Nairobi although the cause is styled as Nyeri registry, a minor internal inconsistency.
The court states 'A close scrutiny of the notice of appeal filed does show that it was filed with the Registrar of the trial court as the signature of the Registrar is missing', where the sentence as worded appears to say the opposite of the finding that follows.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andrew Muciri Muriuki v Nancy Waguama Kareithi [2021] KECA 784 (KLR)", Case Analysis (2021). Civil Application No. 8 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/784/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.