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Court of AppealDismissedCivil Application E232 of 2021· [2022] KECA 811 (KLR)

Gichanga v Gichanga & another

Court of Appeal
29 July 2022
JMJ. M'InotiJMJ. MohammedSKS. ole Kantai
1,249 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal a succession ruling without first getting leave, so the estate distribution stands.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (M'Inoti, Mohammed and ole Kantai, JJA) on an application for stay of execution pending an intended appeal against a ruling of Muchelule, J. dated 15th June 2020 in HC Succ. Cause No. 1088 of 2005, distributing the estate of Joseph Gichanga Kimani (deceased) to dependants rather than in accordance with a will the High Court had found valid. The applicant, Risper Wamaitha Gichanga, argued her intended appeal raised arguable points on the extent to which a court must respect a deceased's wishes in a valid will, and that distribution of the estate would render the appeal nugatory through alienation to third parties. The respondents opposed, contending the application was filed out of time, that the intended appeal was filed without leave and therefore not arguable, and that any loss was compensable. Applying the rule 5(2)(b) test as stated in Stanley Kangethe Kinyanjui v. Tony Ketter, the Court held that in succession matters there is no automatic right of appeal to the Court of Appeal; leave must first be obtained from the High Court or this Court. Finding that the applicant neither sought nor obtained leave, the Court held the intended appeal was not arguable and declined to consider the nugatory limb. The application was dismissed with costs. The underlying distribution ruling was not disturbed by this ruling.

Key legal issues

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01

Whether an intended appeal from a High Court succession decision is arguable where no leave to appeal was obtained

Holding

The intended appeal is not arguable because the applicant neither sought nor obtained leave to appeal against the High Court decision.

Reasoning

The Court noted the appeal arises from the Law of Succession Act and that its decisions consistently hold there is no automatic right of appeal in succession matters; leave must first be obtained from the High Court or this Court. Having examined the record of appeal, the Court found abundantly clear that no leave was sought or obtained, so the intended appeal could not be arguable.

p. 2
02

Whether the nugatory limb under rule 5(2)(b) needed consideration

Holding

Having found the intended appeal not arguable, the Court did not consider the second limb.

Reasoning

Both limbs of the rule 5(2)(b) test must be satisfied for a stay pending appeal. Since the applicant failed on arguability for want of leave, the Court found it unnecessary to consider whether the appeal would be rendered nugatory, and dismissed the application with costs.

Legal principles established

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  • There is no automatic right of appeal to the Court of Appeal from a decision of the High Court in succession matters; leave must first be obtained from the High Court or the Court of Appeal.
  • An applicant for stay of execution pending appeal must satisfy the arguability and nugatory limbs under rule 5(2)(b).

Court orders

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  1. 1.Application for stay of execution dismissed with costs

Authorities

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Legislation

  • Law of Succession Act
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (9)

  • Johnstone Ombima Okwaro & Another v. Dorcas Okwaro & 2 Others
    [2019] eKLR

    No automatic right of appeal in succession matters; leave required

  • Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others
    [2013] eKLR

    Test for stay of execution pending appeal: arguability and nugatory

  • Francis Macharia Karanja & Others v. Virginia Murhoni Karanja
    CA No. 203 of 2014

    Leave requirement for appeals in succession matters

  • Rhoda Wairimu Karanja & Another v. Mary Wangui Karanja & Another
    [2014] eKLR

    Leave requirement for appeals in succession matters

  • John Mwita Murimi & 2 Others v. Mwikabe Chacha Mwita & Another
    [2019] eKLR

    Leave requirement for appeals in succession matters

  • John Ndungu Wainaina & 2 Others v. Mary Njeri Kikuyu
    [2015] eKLR

    Leave requirement for appeals in succession matters

  • Hafswa Omar Abdalla Taib & 2 Others v. Swaleh Abdalla Taib
    CA No. 22 of 2014

    Leave requirement for appeals in succession matters

  • Isaac Alizza v. Samuel Kisiavuki
    [2021] eKLR

    Leave requirement for appeals in succession matters

  • Yunes Kerb Oruta v. Davin Kwamboka Oruta v. George Kerb Oruta & Another
    CA No. 60 of 2016

    Leave requirement for appeals in succession matters

On appeal from
High Court of Kenya at Nairobi
HC Succ. Cause No. 1088 of 2005
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution pending intended appeal from a succession cause

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Gichanga v Gichanga & another", Case Analysis (2022). Civil Application E232 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/811/eng@2022-07-29

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