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Court of AppealDismissedCourt of Appeal at Nakuru, Civil Appeal (judgment dated 28th February 2025; 1st appellant's memorandum of appeal dated 13th June 2018; 2nd appellant's supplementary memorandum of appeal dated 3rd April 2023)

Mughal & Rashid (Suing as the legal representatives of the Estate of the Late Rashid Mughal) & another v Bhola (Civil Appeal 41 of 2018) [2025] KECA 420 (KLR)

Court of Appeal of Kenya
28 February 2025
Mohamed Abdulahi WarsameM. WarsameJMJ. MativoMGM. Gachoka
3,401 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed a succession appeal because the appellants never obtained the required leave to appeal, so their family land dispute was never heard on its merits.

What this practically means

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Executive summary

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The deceased, Saddiq Bhola, died intestate in March 1996. A grant of letters of administration issued to his sons in 1998 and was confirmed in 2000, but was revoked by Ouko, J. in March 2011, after which the respondent filed fresh summons for confirmation proposing a particular mode of distribution. The protesting beneficiaries challenged the distribution, contending that the family agreements rested on an invalid will and prejudiced the sisters. Emukule, J. held on 14th November 2014 that two protesting beneficiaries had received their shares and ordered the remaining net intestate estate to be shared equally among four beneficiaries, with an account of administration to be filed. The 1st and 2nd appellants appealed on grounds including the validity of the agreement dated 8th August 1996 and alleged judicial bias; the respondent withdrew his cross-appeal at the hearing with no orders as to costs. Before the Court of Appeal, the respondent raised a jurisdictional objection: no leave to appeal from the High Court exercising original jurisdiction in a succession cause had been sought or obtained. The appellants relied on an alleged consent order of 30th May 2018 granting leave, which the Court, after scrutinising the whole record, found does not exist. The Court held that leave is a prerequisite to such appeals, distinguishing the contrary-sounding authorities relied on by the 2nd appellant, and that the right of appeal is neither automatic nor absolute - it must be conferred by written law and, where leave is required, obtained first from the High Court or, if refused, from the Court of Appeal. Without leave, the Court had no jurisdiction, declined to consider the merits, dismissed the appeal, and ordered each party to bear their own costs of the appeal.

Questions the Court framed

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

  1. 1.Whether leave to appeal from the High Court sitting as a court of first instance in a succession cause is a prerequisite to the institution of an appeal to the Court of Appeal
  2. 2.Whether the alleged consent order of 30th May 2018 granting leave to appeal exists on the record
  3. 3.Whether this Court has jurisdiction to hear and determine the appeal where no leave was sought or obtained
  4. 4.Whether conflicting decisions of the Court of Appeal on the leave requirement justify excusing the appellants from obtaining leave
  5. 5.The merits of the appeal against the distribution of the intestate estate (not reached)

Key legal issues

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01

Whether leave to appeal is a prerequisite to an appeal to the Court of Appeal in a succession matter determined by the High Court exercising original jurisdiction

Holding

Yes. The Law of Succession Act contains no express right of appeal to the Court of Appeal against High Court decisions in succession matters; an appeal must lie under a written law and, where leave is required, it must first be sought from the High Court and, if refused, from the Court of Appeal.

Reasoning

Section 50(1) & (2) of the Law of Succession Act only provides for appeals from Resident Magistrates' Courts (final at the High Court) and from the Kadhi's Court to the Court of Appeal with leave on points of Muslim law. Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act confers jurisdiction only over appeals that lie under any law. Since no written law creates an express right of appeal here, and leave is a jurisdictional fact, the absence of leave is fatal to the appeal.

p. 5
02

Whether the alleged consent order of 30th May 2018 granting leave to appeal existed

Holding

No. The Court scrutinised the entire record and found the alleged consent does not exist; no leave was sought or granted by the High Court.

Reasoning

The 1st appellant's counsel relied on a consent order recorded on 30th May 2018 in Civil Application No. 108 of 2016 but could not point to its location in the record. The Court, obliged to scrutinise the record in search of the truth, verified the entire record and confirmed the alleged consent does not exist, concluding no leave was sought or granted.

p. 4
03

Whether conflicting Court of Appeal decisions (Julius Kamau Kithaka vs Rhoda Wairimu Karanja line) and the expansion of the court hierarchy justify dispensing with leave

Holding

No. The decision in Julius Kamau Kithaka was an extension-of-time ruling by a single judge which did not conclusively settle the point, and Francis Gachoki Murage in fact supports the leave requirement; rules of procedure do not cure a jurisdictional defect.

Reasoning

The Court read Julius Kamau Kithaka and found it was a single-judge extension-of-time application whose grant of extension did not extinguish the leave objection. Francis Gachoki Murage actually held that where there is no automatic right of appeal, leave must be sought. The Court applied the South African authority of Newlands Surgical Clinic that leave is a jurisdictional fact without which the court has no jurisdiction.

p. 6
04

The merits of the appeal against the distribution of the net intestate estate and the validity of the agreement dated 8th August 1996

Holding

Not reached; the Court declined to delve into the merits after finding the appeal incompetent for want of leave.

Reasoning

Having found the jurisdictional defect dispositive, the Court did not consider the appellants' grounds challenging the impugned judgment of Emukule, J., including the validity of the family agreements, alleged bias and the proposed mode of distribution.

p. 6

Legal principles established

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  • Leave is a prerequisite to an appeal to the Court of Appeal against a decision of the High Court sitting as a court of first instance in a succession matter; where leave is refused by the High Court, the party must seek leave from the Court of Appeal
  • A right of appeal must be clearly and expressly provided by a written law; it cannot be assumed, and an appeal filed without the requisite leave is incompetent
  • An appeal filed without the necessary leave, where such leave is required by law, is incompetent and will be struck out
  • Where leave is required and refused by the High Court, the aggrieved party may apply to the Court of Appeal for leave; the right to appeal is neither automatic nor absolute
  • A decision of a single judge of the Court of Appeal cannot override a decision of a full bench on the leave requirement in succession matters

Court orders

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  1. 1.The appeal is dismissed for want of jurisdiction, the appellants having failed to obtain the requisite leave to appeal
  2. 2.Each party to bear own costs for the appeal

The bench

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

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
JM
majority
MG
majority
On appeal from
High Court of Kenya
Succession cause (not stated); impugned judgment delivered 14th November 2014 by Emukule, J.; grant earlier revoked by Ouko, J. by ruling dated 4th March 2011
Jurisdiction invoked
Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act - appeals which lie to the Court of Appeal under any written law; section 50(1) & (2) of the Law of Succession Act on leave to appeal in succession matters

Relief refused

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Determination of the appeal on the merits (grounds challenging the validity of the 8th August 1996 agreement, alleged judicial bias and the mode of distribution)

The appeal was incompetent for want of leave, a jurisdictional prerequisite, so the Court declined to delve into the merits

p. 6

The respondent's cross-appeal seeking distribution according to the will dated 9th January 1994

Withdrawn during the hearing with no objection from the appellants; withdrawal allowed with no orders as to costs

Costs

Each party to bear own costs for the appeal

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.

Jurisdiction is everything. Where, as was in this case, the High Court, whose judgment is sought to be appealed, sat as a court of first instance, it must first be approached for leave.
p. 6Leave as a jurisdictional prerequisite in succession appeals
unless a right of appeal is clearly and expressly provided by a statute, it does not exist.
p. 5No assumed right of appeal
An appeal filed without obtaining the necessary "leave to appeal" from the court, when such leave is required by the law, (as is the case here), is incompetent and will be struck ofi.
p. 6Consequence of filing an appeal without leave
Having so held, we decline to delve into the merits of this appeal. Consequently, we dismiss this appeal and order each party to bear own costs for the appeal. Orders accordingly.
p. 6Final orders - dismissal for want of jurisdiction and costs
Our scrutiny of the entire record confirmed that the alleged consent does not exist. Consequently, it is our conclusion that no leave was sought and or granted by the High Court either by consent as alleged or otherwise.
p. 4Finding on the alleged consent granting leave
It is important to underscore the requirement that an appeal must lie under any law is a jurisdictional prerequisite for this Court to be properly seized of the matter.
p. 5Statutory basis of appellate jurisdiction

Issues in the judgment

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material

The parties are not fully named in the coram or body of the judgment; the 1st and 2nd appellants are referred to only as 'the 1st appellant' and 'the 2nd appellant' without their names, and the caption of the case does not appear in the extract.

minor

The judgment contains typographical errors, including 'efiect', 'confiicting' and 'struck ofi', and a miscited date '24th March 22011' in the cross-appeal orders.

minor

Ground (a) of the 2nd appellant's issues is internally contradictory as printed, stating the agreement was 'valid and therefore unenforceable'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Mughal & Rashid (Suing as the legal representatives of the Estate of the Late Rashid Mughal) & another v Bhola (Civil Appeal 41 of 2018) [2025] KECA 420 (KLR)", Case Analysis (2025). Court of Appeal at Nakuru, Civil Appeal (judgment dated 28th February 2025; 1st appellant's memorandum of appeal dated 13th June 2018; 2nd appellant's supplementary memorandum of appeal dated 3rd April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/420/eng@2025-02-28

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