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Court of AppealStruck OutNot stated in the judgment

Nderito v Nderito & 2 others (Civil Application E540 of 2024) [2025] KECA 259 (KLR)

Court of Appeal of Kenya
21 February 2025
DMD. K. MusingaFTF. TuiyottFOF. V. Odunga
1,007 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a probate appeal application because the applicant never obtained the mandatory court leave required to appeal in succession matters.

What this practically means

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Executive summary

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This was an interlocutory application in the Court of Appeal at Nairobi seeking ten prayers, principally stay of execution of a ruling of Chemitei, J. dated 3rd October 2024 in Probate and Administration Case HCFP&A 307 of 2006, stay of distribution of the estate of the late Peter Charles Nderito, injunctive orders restraining the respondents from dealing with LR No. 7741/285 and LR No. 7741/286 and structures thereon, and leave to appeal against the trial court's ruling. The respondents opposed the application and raised a preliminary issue that the applicant had neither sought nor obtained leave of the trial court to appeal. The Court directed that the leave issue be argued first. Counsel for the applicant submitted that the impugned ruling finally disposed of the succession cause by confirming the grant and distributing the estate, and that no leave was therefore necessary. Counsel for the respondents, relying on Rhoda Wairimu Karanja and John Mwita Murimi, submitted that under the Law of Succession Act there is no automatic right of appeal and that leave of the High Court, or failing that of the Court of Appeal, is required. The Court agreed, holding that the applicant did not obtain the required leave, and struck out the application as bad in law, with costs to the applicant. The decision reaffirms that leave to appeal is mandatory for appeals in succession matters.

Key legal issues

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01

Whether leave to appeal is required for an appeal to the Court of Appeal from a decision of the High Court in a succession cause

Holding

Leave is required; there is no automatic right of appeal from the High Court's original jurisdiction under the Law of Succession Act, even where the decision finally disposes of the succession cause

Reasoning

The Court reiterated its settled jurisprudence in Rhoda Wairimu Karanja and John Mwita Murimi: the Law of Succession Act contains no express automatic right of appeal from the High Court exercising original jurisdiction. Leave of the High Court is required, and where refused, the applicant may seek leave of the Court of Appeal. Counsel's submission that a final decision confers an automatic appeal right was inconsistent with these express pronouncements.

p. 2

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 from a decision of the High Court exercising its original jurisdiction; leave of the High Court, or failing that leave of the Court of Appeal, is required
  • An application for leave to appeal in a succession matter that is lodged without the required leave is bad in law and liable to be struck out

Court orders

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  1. 1.The application is struck out for being bad in law
  2. 2.The applicant shall bear the costs of the application
On appeal from
High Court of Kenya
Probate and Administration Case HCFP&A 307 of 2006
Jurisdiction invoked
Court of Appeal's jurisdiction over appeals from the High Court exercising original jurisdiction in succession matters, which under the Law of Succession Act lies only with leave of the High Court or, if refused, with leave of the Court of Appeal

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, "Nderito v Nderito & 2 others (Civil Application E540 of 2024) [2025] KECA 259 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/259/eng@2025-02-21

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