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Court of AppealStruck OutCivil Appeal No E077 of 2023· [2024] KECA 707 (KLR)

FWK (Guardian ad litem for TK & SN - Minors) v AMM & another (Civil Appeal E077 of 2023) [2024] KECA 707 (KLR)

Court of Appeal of Kenya
21 June 2024
PNP. NyamweyaLKL. KimaruAMA.O. Muchelule
1,571 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a succession appeal because the appellant never obtained the required leave to appeal.

What this practically means

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Executive summary

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The deceased died intestate in Nyeri on 25th March 2021. His widow and son obtained a joint grant of letters of administration intestate and moved to confirm it. The appellant, FWK, applied to be joined in the succession cause as guardian ad litem of two minor children she said the deceased had fathered and maintained, relying on bank statements and a parcel of land on which the deceased had allegedly built her a house. The first respondent opposed, disputing paternity and dependency and noting that the children's birth certificates did not name the deceased and that they were absent from his eulogy. By a ruling delivered on 20th December 2022, F. Muchemi, J. dismissed the joinder application, holding that the appellant had failed to establish paternity and dependency, with each party bearing own costs. The appellant appealed on grounds including prematurity of the determination, the correct statutory basis for dependency claims, and the evidentiary weight of birth certificates. Before the Court of Appeal (Nyamweya, Kimaru and Muchelule, JJ.A.), the respondents raised a preliminary jurisdictional objection: no leave to appeal had been sought or obtained, yet under the Law of Succession Act appeals in succession causes require leave of the High Court or of the Court of Appeal. The appellant did not respond to the objection. Adopting its own consistent line of authority and the foundational principle that jurisdiction is everything, the Court held the appeal incompetent, struck it out without descending into the merits, and directed each party to bear own costs. The High Court ruling therefore stands undisturbed.

Key legal issues

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01

Whether an appeal from the High Court in a succession cause lies without leave

Holding

It does not; the appeal without leave is incompetent and the Court lacks jurisdiction, so the appeal is struck out without determining the merits

Reasoning

The respondents argued, citing a consistent line of Court of Appeal decisions, that appeals in succession causes require leave of the High Court or, if refused, of the Court of Appeal. The appellant did not respond to the jurisdictional challenge. The Court accepted that position and, following the principle that jurisdiction cannot be conferred by craft or interpretation, declined to descend into the merits and struck the appeal out.

p. 4
02

Whether the merits of the joinder ruling (paternity and dependency of the minors) could be examined

Holding

Not reached; the lack of jurisdiction meant the Court could make no further step on the merits

Reasoning

Although the Court acknowledged its first-appellate duty to re-evaluate the evidence, it held that the jurisdictional objection had to be resolved first. Because no leave had been sought or obtained, the Court downed tools on the merits, leaving the High Court ruling on paternity, dependency and joinder undisturbed.

p. 3

Legal principles established

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  • Under the Law of Succession Act there is no automatic right of appeal to the Court of Appeal; an appeal lies only with leave of the High Court or, if refused, of the Court of Appeal, and an appeal filed without leave is incompetent and strikes the Court of jurisdiction

Court orders

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  1. 1.The appeal is struck out
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Law of Succession Actsection 29
  • Law of Succession Actsection 3(2)
  • Law of Succession Actsection 28
  • Probate and Administration RulesRule 49
  • Probate and Administration RulesRule 73
  • Constitution of KenyaArticle 163(3)

Cases cited (7)

  • Mrewa Kiome -vs- Stephen Marande Kiome
    Civil Application No. 217 of 1995
  • Rhoda Wairimu Karanja & Another -vs- Mary Wangui Karanja
    [2014]eKLR
  • George Vuhuga Kidula -vs- James Kidula
    Civil Application No. 148 of 1998
  • In the Matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution
    Constitutional Application No. 2 of 2011
  • Owners of the Motor Vessel "Lillians" -vs- Caltex Oil (Kenya) Ltd
    [1989]KLR 1
  • Mary Odhiambo Otieno -vs- Gertrude Akoth Andunga
    Civil Appeal No. 309 of 1997
  • John Mwita Murimi & 2 Others -vs- Mwikabe Chacha Mwita & Another
    [2019]eKLR
On appeal from
High Court of Kenya at Nyeri
Succession cause (number not stated)
Jurisdiction invoked
Appeals from the High Court in succession causes lie only with leave of the High Court or of the Court of Appeal under the Law of Succession Act; the Court held it lacked jurisdiction absent leave

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, "FWK (Guardian ad litem for TK & SN - Minors) v AMM & another (Civil Appeal E077 of 2023) [2024] KECA 707 (KLR)", Case Analysis (2024). Civil Appeal No E077 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/707/eng@2024-06-21

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