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Court of AppealPartially AllowedCivil Appeal (Application) 259 of 2019· [2022] KECA 411 (KLR)

Florence Murunga Okea & 3 others v William Ouko Ogola

Court of Appeal
4 March 2022
1,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal struck out a succession appeal filed without prior leave, confirming leave is mandatory before appealing High Court succession decisions.

What this practically means

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Executive summary

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The applicants, administrators of the estate of the late Elisha Okea Ogola, moved the Court of Appeal under Rule 84 of the Court of Appeal Rules to strike out the respondent's record of appeal in Civil Appeal No. 259 of 2019, filed against a ruling of the High Court at Migori (Mrima, J.) dismissing his application to alter the distribution of the estate confirmed in Migori High Court Succession Cause No. 95 of 2015. The applicants argued that under Section 50 of the Law of Succession Act there is no automatic right of appeal from the High Court exercising original jurisdiction in a succession dispute; an aggrieved party must first obtain leave, and an appeal filed without leave is incompetent, a jurisdictional defect that Article 159(2) of the Constitution cannot cure. The respondent and the interested parties opposed, urging that striking out was inappropriate and that the appeal should be heard on merit. The court found the application was filed within the 30-day Rule 84 window, that no leave to appeal had been sought or obtained, and that leave is an essential step prior to filing an appeal. Following Rhoda Wairimu Karanja, it held the appeal incompetent and allowed the application, striking out the record of appeal with costs to the applicants. The decision below was not disturbed; the appeal was simply removed from the court's docket for want of leave.

Key legal issues

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01

Whether leave to appeal is required before appealing a High Court succession decision exercising original jurisdiction

Holding

Yes; there is no automatic right of appeal under the Law of Succession Act, and leave is an essential step prior to filing an appeal.

Reasoning

The court adopted its earlier decision in Rhoda Wairimu Karanja, holding that under the Law of Succession Act an appeal lies from the High Court exercising original jurisdiction only with leave of the High Court or, if refused, of the Court of Appeal. Leave promotes finality and expedition in probate disputes. The respondent neither sought nor explained the absence of leave, so the appeal was incompetent.

p. 3
02

Whether the application to strike out was filed within time under Rule 84

Holding

Yes; the application was filed on 27th November 2019, within 30 days of service of the record of appeal on 20th November 2019.

Reasoning

The court computed the Rule 84 period from service of the record of appeal on the applicants' counsel on 20th November 2019. The application filed on 27th November 2019 fell within the 30-day window, and the respondent did not refute compliance with Rule 84.

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Whether Article 159(2) of the Constitution could cure the absence of leave

Holding

No; the applicants argued, and the court accepted, that failure to obtain leave is a jurisdictional question that cannot be saved by the overriding-objective provisions of Article 159(2).

Reasoning

The applicants submitted that jurisdiction is central and determinative, and that where none has been donated the court must down its tools; failure to obtain leave is a jurisdictional defect not curable by Article 159(2). The respondent's reliance on Article 159 did not counter the absence of leave, and the court struck out the appeal.

p. 2

Legal principles established

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  • An appeal to the Court of Appeal from a High Court decision exercising original jurisdiction under the Law of Succession Act lies only with leave; leave is an essential step prior to filing an appeal, and an appeal filed without leave is incompetent and must be struck out.
  • An application to strike out a record of appeal under Rule 84 must be filed within 30 days of service of the record of appeal.

Court orders

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  1. 1.The notice of motion dated 22nd November 2019 is allowed
  2. 2.The record of appeal filed in Civil Appeal No. 259 of 2019 is struck out
  3. 3.Costs of the application to the applicants

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)
  • Law of Succession ActSection 50
  • Court of Appeal RulesRule 1(2)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 84
  • Court of Appeal RulesRule 85

Cases cited (2)

  • Rhoda Wairimu Karanja & another v Mary Wangui Karanja & another
    [2014]

    Under the Law of Succession Act there is no automatic right of appeal; leave of the High Court or Court of Appeal is required.

  • John Mwita Murimi & 2 others v Mwikabe Chacha Mwita & another
    [2019] eKLR

    See-reference supporting the leave requirement in succession appeals.

On appeal from
High Court of Kenya at Migori
Jurisdiction invoked
Rules 1(2), 42, 43, 84 & 85 of the Court of Appeal 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, "Florence Murunga Okea & 3 others v William Ouko Ogola", Case Analysis (2022). Civil Appeal (Application) 259 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/411/eng@2022-03-04

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