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Court of AppealDismissedCivil Appeal (Application) E101 of 2021

Boit v Kumin & 2 others (Civil Appeal (Application) E101 of 2021) (28 March 2025) (Reasons) [2025] KECA 568 (KLR)

Court of Appeal of Kenya
28 March 2025
JMJM MativoPGPM GachokaWKWK Korir
3,068 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a succession stay application because the appellant never obtained the mandatory leave to appeal from the High Court first.

What this practically means

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Executive summary

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This is the Court of Appeal at Nakuru's reserved reasons, delivered in accordance with Rule 34(7) of the Court of Appeal Rules, 2022, for its decision of 17th March 2025 dismissing Solomon Boit's application dated 3rd February 2025 for stay of proceedings in Nakuru High Court Succession Cause No. 585 of 2016, a succession dispute between the applicant and his mother, the administratrix of the estate of John Ezekiel Kiboit. The application was brought under Rules 5(2)(b) and 44(1) of the Court of Appeal Rules, 2022, on grounds that the appeal against the High Court ruling of 17th September 2020 (J. Ngugi, J) dismissing the applicant's application to set aside a consent order was arguable and that the applicant would otherwise be rendered nugatory. The Court raised, sua sponte, the question whether the appeal was maintainable without leave, and counsel for the applicant conceded that no leave had been sought or obtained. Relying principally on its recent decision in Mughal & Rashid v Bhola, the Court held that the Law of Succession Act confers no automatic right of appeal to the Court of Appeal against High Court decisions in succession matters; where the High Court sits as a court of first instance, leave must first be sought from the High Court and, if refused, from the Court of Appeal, in accordance with Rule 41(1). Leave is a jurisdictional fact: without it, the Court has no jurisdiction. The application was therefore found incurably defective on two fronts - incompetence for want of leave and want of jurisdiction - and the Court declined to consider arguability or the nugatory aspect. The application was struck out with costs to the applicant.

Questions the Court framed

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

  1. 1.Whether the appeal against the High Court ruling in succession proceedings, filed without leave, is maintainable before the Court of Appeal
  2. 2.Whether leave to appeal is a jurisdictional prerequisite for an application for stay of proceedings in a succession matter
  3. 3.Whether the applicant satisfied the twin principles of arguability and nugatory aspect

Key legal issues

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01

Whether an appeal lies to the Court of Appeal against a decision of the High Court in succession proceedings without leave

Holding

The Law of Succession Act provides no automatic right of appeal to the Court of Appeal against High Court decisions in succession matters; where the High Court sits as a court of first instance, an appeal lies only with leave first sought from the High Court and, if refused, from the Court of Appeal

Reasoning

Section 50 of the Law of Succession Act deals only with appeals from Resident Magistrates' Courts and Kadhi's Courts. Article 164(3) of the Constitution and section 3 of the Appellate Jurisdiction Act confer appellate jurisdiction only where an appeal lies under any law. Since the right of appeal is statutory and infers in no one, the absence of an express statutory right means an appeal can only proceed with leave, per Rule 41(1) of the Court of Appeal Rules, 2022.

p. 4
02

Whether want of leave deprives the Court of jurisdiction over the appeal and the application for stay

Holding

Leave to appeal is a jurisdictional fact; without it, the Court has no jurisdiction to entertain the dispute, and the application for stay pending appeal is incurably defective

Reasoning

The Court adopted its decision in Mughal & Rashid and the South African authority of Brand JA in Newlands Surgical Clinic, holding that leave constitutes a jurisdictional fact without which the court has no jurisdiction. The Court's inherent power to regulate its own process does not extend to assuming jurisdiction not conferred by the Constitution or statute. Having found the application defective, the Court did not consider arguability or the nugatory aspect.

p. 5

Legal principles established

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  • An appeal to the Court of Appeal must lie under a written law; unless a right of appeal is clearly and expressly provided by statute, it does not exist
  • Where the High Court sits as a court of first instance in succession proceedings under the Law of Succession Act, leave to appeal is a jurisdictional prerequisite and must first be sought from the High Court and, if refused, from the Court of Appeal
  • The right to appeal to the Court of Appeal is neither automatic nor absolute

Court orders

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  1. 1.The application dated 3rd February 2025 is struck out
  2. 2.The applicant shall bear the costs of the application

The bench

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

JM
majority
PG
majority
WK
majority
On appeal from
High Court of Kenya, Nakuru
Succession Cause No. 585 of 2016
Jurisdiction invoked
Article 164(3) of the Constitution and Section 3 of the Appellate Jurisdiction Act, as qualified by the Law of Succession Act and Rule 41(1) of the Court of Appeal Rules, 2022

Relief refused

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Stay of proceedings in Nakuru High Court Succession Cause No. 585 of 2016 pending hearing and determination of the appeal

The application was incompetent for want of leave to appeal, which is a jurisdictional prerequisite; the Court therefore had no jurisdiction to entertain it and did not reach the twin principles of arguability and nugatory aspect

p. 6

Costs

The applicant shall bear the costs of the application.

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.

The upshot is that the application dated 3rd February 2025 is bad in law and is for striking out, which we hereby do. The applicant shall bear the costs of the application.
p. 6Final orders - striking out of the stay application
unless a right of appeal is clearly and expressly provided by a statute, it does not exist. This is because a right of appeal infers in no one and therefore an appeal for its maintainability must have the clear authority of law.
p. 4Statutory basis of the right of appeal
leave is a jurisdictional hurdle for a party seeking to approach this Court in proceedings governed by the Law of Succession Act.
p. 6Leave as a jurisdictional prerequisite in succession matters
It is important to underscore that the requirement that an appeal must lie under the law is a jurisdictional precept for this Court to be properly seized of an application for stay pending hearing of an appeal.
p. 5Jurisdictional prerequisite applies equally to stay applications

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Boit v Kumin & 2 others (Civil Appeal (Application) E101 of 2021)  (28 March 2025) (Reasons) [2025] KECA 568 (KLR)", Case Analysis (2025). Civil Appeal (Application) E101 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/568/eng@2025-03-28

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