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Court of AppealStruck OutNot stated in the judgment

M'Kwiriga v Gatembo & another (Civil Appeal (Application) E148 of 2024) [2025] KECA 999 (KLR)

Court of Appeal of Kenya
27 May 2025
SKS. Ole KantaiJLJ. LesiitALAli-Aroni
166 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal from a succession case because the appellant filed it late and never got the required court permission.

What this practically means

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Executive summary

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This short Court of Appeal ruling (Meru; Ole Kantai, Lesiit and Ali-Aroni, JJA) determined a motion by the applicants seeking to strike out an appeal for having been filed out of time. The applicants argued that the appeal was filed outside the stipulated period and that, because the underlying suit at the High Court was a succession cause, the respondent required but never sought or obtained leave to appeal to the Court of Appeal. Counsel for the respondent conceded all three defects: that no leave had been obtained, that the record of appeal was filed out of time, and that the letter bespeaking the proceedings was not copied to the applicants' counsel. On those admissions the court, in a single judgment of the full bench, held the appeal incompetent and struck it out, awarding costs to the applicants. The judgment does not name the parties, the case number, the decision appealed from, or the specific statutory provisions invoked, and cites no authorities. Its binding takeaway for lower courts and practitioners is that an appeal from a succession cause filed without leave, out of time, and without proper service of the bespeaking letter is incompetent and will be struck out on the strength of such concessions.

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 should be struck out for having been filed out of time
  2. 2.Whether the appeal was competent given that the suit at the High Court was a succession cause and no leave to appeal had been sought or obtained

Key legal issues

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01

Competency of an appeal filed without leave and out of time

Holding

An appeal filed out of time, in a succession matter, without leave and without service of the bespeaking letter on opposing counsel, is incompetent and must be struck out.

Reasoning

Counsel for the respondent conceded that no leave was obtained to file the appeal, that the record of appeal was filed out of time, and that the letter bespeaking proceedings was not copied to counsel for the applicants. On those admissions the court found the appeal incompetent and struck it out with costs.

p. 1

Legal principles established

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  • Where the suit at the High Court is a succession cause, an appeal to the Court of Appeal requires leave, and an appeal filed without leave and out of time is incompetent and liable to be struck out.

Court orders

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  1. 1.The appeal is struck out for being incompetent
  2. 2.Costs of the motion awarded to the applicants

The bench

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

SK
majority
JL
majority
AL
majority
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Appeal to the Court of Appeal; the motion was brought 'under various provisions of law' not specified in the judgment

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.

In those premises the appeal is incompetent and the same is struck out with costs to the applicants.
p. 1Final orders - striking out of incompetent appeal
Counsel for the respondent admits that no leave was obtained to file an appeal. He also admits that the record of appeal was filed out of time
p. 1Admissions grounding the strike-out

Issues in the judgment

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minor

The judgment does not name the parties, the case number, or the specific statutory provisions under which the motion was brought, referring only to 'various provisions of law'.

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, "M'Kwiriga v Gatembo & another (Civil Appeal (Application) E148 of 2024) [2025] KECA 999 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/999/eng@2025-05-27

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