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Court of AppealStruck OutCivil Appeal No. 60 of 2016

Yunes Kerubo Oruta & another v George Kombo Oruta & another [2021] KECA 965 (KLR)

Court of Appeal
19 February 2021
6,890 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~28 min to read original · ~4 min brief

The bottom line

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The Court of Appeal struck out a family inheritance appeal because no one had first obtained the court's permission (leave) to appeal a succession ruling.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal against the judgment of Nagillah, J. in Kisii Succession Cause No. 169 of 2013, in which the trial Judge dismissed the appellant widow's petition for letters of administration, sustained the 1st respondent's objection and cross-application, declared transfers of the deceased's properties effected after his death null and void as intermeddling under section 45 of the Law of Succession Act, prohibited dealings with the estate, and allowed the 1st respondent to petition for a grant. The appellant advanced four thematic grounds attacking findings on intermeddling, the court's discretion under section 66, the exclusion of grandchildren as beneficiaries, and the exercise of the trial court's jurisdiction. In response, the respondents raised, among other things, the competence of the appeal for want of leave. The Court of Appeal examined sections 47 and 50 of the Law of Succession Act and the line of authority beginning with Makhangu v Kibwana and reaffirmed in Rhoda Wairimu Karanja, John Mwita Murimi and Francis Macharia Karanja, which establishes that there is no automatic right of appeal to the Court of Appeal from High Court decisions in succession matters; an aggrieved party must obtain leave from the High Court or, if refused, from the Court of Appeal. Holding that a jurisdictional defect must be addressed whenever the court is confronted with it, even belatedly in submissions or on the court's own motion, and that no leave had been sought or granted in this appeal, the Court ruled that it had no jurisdiction to interrogate the merits and struck the appeal out as incompetent. On account of the family nature of the dispute, each party was directed to bear its own costs. The binding takeaway for practice: always obtain leave before filing an appeal from a High Court succession decree.

Questions the Court framed

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

  1. 1.Whether the appeal as laid is incompetent for want of leave to appeal to the Court of Appeal
  2. 2.Whether the learned Judge exercised his discretion injudiciously when he arrived at the impugned decision
  3. 3.What are the appropriate orders to be granted in light of the conclusions reached by the Court

Key legal issues

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01

Whether an appeal lies to the Court of Appeal from a High Court decision in a succession cause without leave

Holding

No. The Law of Succession Act contains no automatic right of appeal to the Court of Appeal from High Court succession decisions; leave must be obtained from the High Court or, if refused, from the Court of Appeal.

Reasoning

Section 47 of the Law of Succession Act makes no mention of an appeal to the Court of Appeal from decisions of the High Court in its original jurisdiction. Section 50 provides for appeals only from subordinate and Kadhi's courts to the High Court, the latter's decision being final. Following Makhangu v Kibwana, Rhoda Wairimu Karanja, John Mwita Murimi and Francis Macharia Karanja, the Court held it lacked jurisdiction and downed its tools despite the appeal having been fully heard and the family nature of the dispute.

02

Whether a jurisdictional defect may be raised belatedly, in submissions rather than a preliminary objection, or by the court sua motu

Holding

Yes. Jurisdiction goes to the root of the court's authority and may be raised at any stage, including in submissions opposing an appeal, and the court may act on its own motion.

Reasoning

The Court noted the incompetence issue was raised as part of submissions rather than a preliminary objection, and that the appeal had already been heard. Relying on Francis Macharia Karanja and Hafswa Omar Abdalla Taib, it reaffirmed that a court can raise and determine jurisdiction suo motu, and that a jurisdictional defect must be addressed whenever confronted with it, however late.

p. 8

Legal principles established

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  • There is no automatic right of appeal to the Court of Appeal from decisions of the High Court in succession matters; leave of the High Court or the Court of Appeal must first be obtained.
  • A jurisdictional issue is fundamental and must be addressed by a court whenever confronted with it, whether raised as an interlocutory issue, belatedly at the hearing, or by the court of its own motion.

Court orders

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  1. 1.The appeal is struck out as being incompetent for want of leave
  2. 2.Each party to bear own costs

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Kisii
Kisii Succession Cause No. 169 of 2013
Jurisdiction invoked
Sections 47 and 50 of the Law of Succession Act, Cap 160; section 66 of the Civil Procedure Act; Rule 47 of the Probate and Administration Rules - appeal from High Court in succession matter requires leave

Relief refused

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Interrogation of the merits of the appeal

Want of jurisdiction for failure to obtain leave to appeal from either the High Court or the Court of Appeal

p. 9

Costs

Each party to bear own 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.

In the result, the appeal is struck out as being incompetent. This being a family issue, we direct each party to bear own costs.
p. 9Final orders - striking out for want of leave; costs
we rule that, we have no jurisdiction to interrogate the merits of the appeal as it is incompetent as laid for want of leave to file the same granted by either the High Court appealed from or this Court appealed to pursuant to section 47 of the Act
p. 9Want of leave - no jurisdiction over merits of succession appeal
Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.
p. 6Jurisdiction - downing of tools
in succession matters, there is no automatic right of appeal without leave of court.
p. 8Leave requirement for succession appeals

Issues in the judgment

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minor

The citation of Makhangu vs. Kibwana appears with varying years/page references within the judgment

minor

The judgment is dated and delivered at Nairobi though the coram states the Court of Appeal at Kisumu

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, "Yunes Kerubo Oruta & another v George Kombo Oruta & another [2021] KECA 965 (KLR)", Case Analysis (2021). Civil Appeal No. 60 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/965/eng@2021-02-19

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